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US SUPREME COURT TAKES ANOTHER BITE OUT OF MIRANDA

Jun 08 2010
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Suspects Must Invoke Rights Unambiguously; Justice Sotomayer h6ly and Forcefully Dissents as High Court Narrows Miranda
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Our last post dealt with the prospect that the Obama administration may modify the long-standing “public safety exception” of Miranda v. Arizona —the 1966 Supreme Court that established the following prophylactic rules for warning criminal suspects taken into police custody: 1) right to remain silent, 2) anything a suspect says can be used against him in a court of law, 3) suspect has right to have an attorney present during police questioning, and 4) if the suspect cannot afford an attorney, one will be appointed to him prior to police questioning.

In another post earlier this year, we discussed two cases handed down by the Supreme Court which seriously restricted these
Miranda warnings. In that post we wrote:

“ Miranda has been one of the most controversial decisions ever rendered by the Supreme Court. Law enforcement hates it, prosecutors have consistently tried to overrule it, and the High Court itself has in recent years taken every legal opportunity to undermine it. That is precisely what the Court did this session in two cases:

Florida v. Powell and Maryland v. Shatzer . Both of these cases involve situations where the State’s highest courts found a Miranda violation and the Supreme Court elected to overturn those decisions.

Significantly, the opinions of the Supreme Court were delivered by its most conservative and liberal justices: Justice Scalia in the Shatzer
case and Justice Ginsburg in the
Powell case.

“ … Kevin Dwayne Powell was arrested in Tampa, Florida in August 2004 in connection with a robbery investigation. The suspect was taken to the local police headquarters where he was read the standard

Miranda rights form: right to silence and right to ‘talk to a lawyer before answering any of our questions.’ Powell signed the waiver form and agreed to talk to the officers. He thereafter told the officers the handgun found in his girlfriend’s apartment was his, and as a convicted felon, he knew it was a crime to possess it. He was charged and subsequently convicted of illegal possession of a firearm by a convicted felon.

“The trial court denied Powell’s attempt to have the statements made to the police suppressed under
Miranda . Relying upon a line of Miranda -related decisions, its own decisions, and the Florida Constitution, the Florida Supreme Court overruled the trial court and reversed Powell’s conviction. The Florida high court based its reversal on the fact that a suspect has a right to be ‘clearly informed’ of his right to an attorney’s presence ‘during questioning.’ The Court concluded the advice given to Powell about his right to an attorney had been misleading and added ‘a right that has never been expressed cannot be reiterated.’

“The State appealed to the U.S. Supreme Court and the court granted certiorari review. Powell argued the High Court lacked jurisdiction in the case because the Florida Supreme Court had relied not only upon Miranda but had also upon the Florida Constitution to find a Miranda violation. The Court brushed aside this argument, saying the Florida Supreme Court had not made it ‘clear’ that Miranda was only being used ‘for the purpose of guidance’ or that its decision was grounded in the Florida Constitution. The Court added that while the Florida Supreme Court is free to attach additional
Miranda -like protections under the Florida Constitution, it must do so ‘clearly and expressly.’

“The Supreme Court then turned its attention to the third Miranda warning protection: the right to consult and have an attorney present during an interrogation. The Court pointed out it had never adopted a ‘precise formulation’ or the exact words necessary to convey this right to suspects. The Court then concluded the advice the Tampa police had given to Powell was sufficient to reasonably convey to the suspect that he had a ‘right to have an attorney present, not only at the onset of the interrogation, but at all times.’

“The Shatzer case involved a situation where an inmate, Michael Blaine Shatzer, was serving time in a Maryland penal facility for a sex offense. In August 2003 the Hagerstown Police Department received information that Shatzer had sexually molested his three-year-old son prior to his incarceration. A police detective visited Shatzer at the prison to question him about the allegation concerning his son. After being apprised of his
Miranda rights, Shatzer refused to talk to the detective without an attorney being present.

The police closed the case. Three years later additional information was developed linking Shatzer to the sexual abuse of his son. Another detective was sent to the prison to question him about the case. This time after being read his
Miranda rights Shatzer signed a waiver and agreed to speak with the detective. After about thirty minutes of questioning, Shatzer implicated himself in sexual impropriety with his son. A second interview was conducted with Shatzer during which he further incriminated himself by telling the police he didn’t force his son into the sexual impropriety. Shatzer was charged and convicted of sexual child abuse of his son.

“The U.S. Supreme Court nearly three decades ago held in Edwards v. Arizona that absent a ‘break in custody,’ the Miranda rights remain intact throughout the custodial interrogation process. Shatzer moved to suppress his 2006 statements under Edwards , arguing that his return to the general prison population did not constitute a break in the custodial interrogation process. The Maryland Court of Appeals agreed, saying ‘the passage of time alone is insufficient to [end] the protections afforded by Edwards ,’ and that Shatzer’s release back into general population between the 2003 and 2006 interrogations did not constitute a break in custody within any of the Edwards exceptions.

“The State of Maryland appealed to the Supreme Court, prompting the Court to decide exactly what constitutes a ‘break in custody’ within the purview of
Edwards . The Court confronted the issue with the following questions: ‘If Shatzer’s return to the general prison population qualified as a break in custody … there is no doubt that it lasted long enough (2 ½ years) to meet that durational [ Edwards ] requirement. But what about a break that has lasted only one year? Or only one week? It is impractical to leave the answer to that question for clarification in future case-by-case adjudication; law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful.’

“The Court then set a 14-day period as the precise ‘break in custody’ requirement within the Edwards custodial interrogation framework. In effect, a suspect held in actual custody on a criminal charge who invokes his right to silence and counsel is protected for 14 days. Any statement the suspect gives to the police after that 14-day period is not protected by the four Miranda rights should he elect to give the police a confession.”

On June 1, 2010 the Supreme Court in yet another decision, Berghuis v. Thompkins , took another bite out of the constitutional parameters of Miranda . Like Shazter and Power , Berghuis also involved a situation where the Supreme Court reversed a lower court decision granting Miranda relief—this time it was the Sixth Circuit Court of Appeals.

For Berghuis to be understood, the decision must be prefaced with precedent from a 1994 case in Davis v. United States in which the court ruled that a suspect must invoke his Miranda right to counsel “unambiguously;” that any “ambiguous or equivocal” statement, or no statement at all, does not require the police to stop questioning the suspect or to try and “clarify” the suspect’s intent. Berghuis v. Thompkins

In January 2000 there was a shooting outside a mall in Southfield, Michigan. One victim died in the shooting and another survived his serious wounds. The local police developed information that Van Chester Thompkins was a suspect in the shooting. Thompkins fled the state and was eventually arrested one year later in Ohio. Two Southfield detectives went to Ohio to interrogate Thompkins who was awaiting transfer back to Michigan. The interrogation was conducted in an 8 by 10 feet room with Thompkins sitting in a desk-like chair. The interview began at 1:30 p.m. and last approximately three hours. A “Detective Helgert” gave Thompkins a “Notification of Constitutional Rights and Statement” (a Miranda rights form). The form specifically advised:

“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.”

Detective Helgert had Thompkins read this warning out loud, and the suspect complied. The detective concluded that Thompkins “understood English.” Helgert then read Thompkins the other Miranda warnings on the form and asked him to sign the form “to demonstrate that he understood his rights.” Thompkins refused to sign the form. The interview began. The Supreme Court noted that “at no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney.” Thompkins didn’t say much during the interview, responding “yeah” or “no” or “I don’t know” to questions.

“Do you believe in God?” Helgert asked about 15 minutes before the interview ended.

“Yes,” Thompkins replied with tears forming in his eyes.

“Do you pray to God to forgive you for shooting that boy down?” Helgert asked.

“Yes,” Thompkins replied, looking away.

After being returned to Michigan and indicted for first degree murder, Thompkins moved to suppress the statement made to Helgert on the ground that he had invoked his right to remain silent. He relied upon a 1975 Supreme Court decision, Michigan v. Mosley , which held that a suspect must waive his right to an attorney. This was a shaky legal issue because four years after the Mosley decision the Supreme Court in North Carolina v. Butler held that a waiver of the right to counsel did not have to be express and that police could infer a waiver of the right “based on the actions and words of the person interrogated.”

The Sixth Circuit Court of Appeals justified its reversal of Thompkins convictions despite Butler by pointing out that Thompkins’ “persistence silence for nearly three hours of questioning and repeated invitations to tell his side of the story offered clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.” Although the Supreme Court had never applied the Davis rationale, that the invocation of the right to counsel be express and unambiguous, to the right to remain silent, the court found the Sixth Circuit’s anti- Butler reasoning “unpersuasive.” Saying it saw no reason to create a “different standard” than Davis with respect to the right to remain silent, the court explained its position this way:

“There is no good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that ‘avoid[s] difficulties of proof and … provide[s] guidance to officers’ on how to proceed in the face of ambiguity. 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.’ Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights ‘might add marginally to Miranda’s goal of dispelling the compulsion inherent in custodial interrogation.’ But ‘as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.’

“Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of those simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

Justice Sotomayer, joined by Justices Stevens, Ginsburg and Breyer, sharply dissented from this majority view:

“The strength of Thompkins’ Miranda claim depends in large part on the circumstances of the 3-hour interrogation, at the end of which he made inculpatory statements later introduced at trial. The Court’s opinion downplays record evidence that Thompkins remained almost completely silent and unresponsive throughout that session. One of the interrogating officers, Detective Helgert, testified that although Thompkins was administered Miranda warnings, the last of which he read aloud, Thompkins expressly declined to sign a written acknowledgement that he had been advised of and understood his rights. There is conflicting evidence in the record about whether Thompkins ever verbally confirmed understanding his rights. The record contains no indication that the officers sought or obtained an express waiver.

“As to the interrogation itself, Helgert candidly characterized it as ‘very, very one-sided’ and ‘nearly a monologue.’ Thompkins was ‘[p[eculiar,’ ‘[s[sullen,’ and ‘[g]enerally quiet.’ Helgert and his partner ‘did most of the talking,’ as Thompkins was ‘not verbally communicative’ and ‘[l]argely’ remained silent. To the extent Thompkins gave any response, his answers consisted of ‘a word or two. A ‘yeah,’ or a ‘no,’ or ‘I don’t know’ … And sometimes … he simply saw down … with [his] head in [his] hands looking down. Sometimes … he would look up and make eye-contact would be the only response.’ After proceeding in this fashion for approximately 2 hours and 45 minutes, Helgert asked Thompkins three questions relating to his faith in God. The prosecution relied at trial on Thompkins’ one-word answers of ‘yes.’”

Justice Sotomayer h6ly believed, and forcefully said as much, that these particular conditions were insufficient to find Thompkins had knowingly and intelligently waived his right to remain silent. Although he was read his Miranda rights and indicated he understood them, there was simply no evidence to support the unilateral decision by the majority of Court that he had implicitly waived them by not expressly and unambiguously invoking them.

Thompkins stands as yet another indication that the Supreme Court would constitutionally bless any attempt by the Obama administration and Congress to modify the “public safety exception” in terrorism cases. In three cases this year alone the high court has tightened the noose around Miranda’s neck—and as pointed out by Justice Sotomayer, the court had to walk over a number of precedents to justify that noose tightening. We believe that unless this dangerous trend is reversed soon, before the next quarter of this century has passed, Miranda will have been overruled and hang as a relic in some legal museum.

As we have said in the past, these are dangerous times in which we live with our precious constitutional freedoms under assault from every extreme. Indeed, a bad moon is rising. We are not alarmists wandering in the wilderness ringing the bell of damn and doom. We are pragmatists who clearly read the signs, not tea leaves. We hope we are wrong, but that knot of fear in our gut tells us we are right—.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

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    One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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    He gave me one of the most honest answers I have received in a very long time about any issue I was having with anything. Legal or not legal. I highly recommend giving him a call and … More will be referring him to friends and family if they have any issues in the future.Positive
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  • Avatar I’m Home ★★★★★ 3 years ago
    He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
  • Avatar Tad Nieschwietz ★★★★★ 3 years ago
    Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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  • Avatar Maher Abbara ★★★★★ 3 years ago
    Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
  • Avatar Thomas McLaughlin ★★★★★ 3 years ago
    Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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  • Avatar Zarrie Adkins ★★★★★ 3 years ago
    He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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  • Avatar Keisha Gaches ★★★★★ 3 years ago
    He was very truthful and honest with us very great man I would recommend him and we would use him again
  • Avatar Samyra Carrasquillo ★★★★★ 3 years ago
    Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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  • Avatar Raul Perez ★★★★★ 3 years ago
    I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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  • Avatar Johnny Johnson Jr ★★★★★ 3 years ago
    This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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  • Avatar Dana Adkison ★★★★★ 3 years ago
    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Crecencio Fabian ★★★★★ 3 years ago
    He explained my case better then any other lawyerPositive
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  • Avatar Barry Lewis ★★★★ 3 years ago
    Very informative
  • Avatar Ismael Flores ★★★★★ 3 years ago
  • Avatar Haley Danielle Lummus ★★★★★ 3 years ago
  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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