Posted by Jonathan Adler:
"The Constitution Does Not Protect a Suspect From Himself or His Mother":
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1180062292
The U.S. Court of Appeals for the Sixth Circuit ruled 7-6, en banc, in
[1]Van Hook v. Anderson, that a criminal suspect who has invoked his
constitutional right to counsel may reinitiate communication with
police through a trusted third-party. Judge McKeague's opinion for the
majority summarizes
Following the arrest of a suspect, the police advise him of his
rights outlined in Miranda v. Arizona. The suspect asks for a
lawyer. Under Edwards v. Arizona, all questioning must then stop
(a) until a lawyer has been provided, or (b) unless the suspect
�himself� initiates a discussion. Later, police talk to the
suspect�s mother (or a close friend, sibling, etc.), and, based on
that conversation, they believe that the suspect now wants to talk
with them without a lawyer. Are they permitted to approach the
suspect and inquire whether he now wants to talk, based solely on
the discussion with the mother? Or, rather, are they precluded from
acting on that information because it was not communicated to them
directly by the suspect? Today we join several of our sister
circuits in holding that the police can make the limited inquiry
without running afoul of Edwards.
In the case at hand, the police claim they were told by the suspect's
mother that he wanted to talk to police after all, despite his earlier
request for a lawyer. The police asked the suspect if this was the
case and, after re-Mirandizing him, obtained his confession to a
grisly murder.
Judges Cole, Merritt and Martin each authored a dissent. Judge Cole's
begins:
The Court today adopts the position that law enforcement officers
may renew contact with criminal suspects upon learning from third
parties that the suspects are willing to waive their previously
invoked right to counsel. In so holding, the majority concludes
that neither reason nor established case law require suspects�who,
by definition, are in jail surrounded at all times by
law-enforcement personnel�to directly communicate to police their
wish to waive their previously invoked constitutional rights. The
Supreme Court has instructed us that we must view custodial waivers
of rights with a high degree of suspicion. In my view, we must be
doubly skeptical of a waiver of rights effected through the
backdoor of a purported third-party agent, especially when all the
suspect has to do is proclaim to the nearest guard, �I want to
talk.�
References
1. http://www.ca6.uscourts.gov/opinions.pdf/07a0192p-06.pdf
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