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No. 08-680

 

In the Supreme Court of the United States

STATE OF MARYLAND, PETITIONER

v.

MICHAEL BLAINE SHATZER, SR.

ON WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

ELENA KAGAN
Solicitor General
Counsel of Record
RITA M. GLAVIN
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
TOBY J. HEYTENS
Assistant to the Solicitor
General
DEBORAH WATSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether Edwards v. Arizona, 451 U.S. 477 (1981), requires the suppression of voluntary statements that respondent made after receiving Miranda warnings because, two-and-a-half years earlier, respondent, who was incarcerated on a separate crime and was later released back to the general prison population, had invoked his Fifth Amendment right to counsel when a different law enforcment official sought to question him about the same offense.

In the Supreme Court of the United States

No. 08-680

STATE OF MARYLAND, PETITIONER

v.

MICHAEL BLAINE SHATZER, SR.

ON WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF MARYLAND

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns the appropriate application of Edwards v. Arizona, 451 U.S. 477 (1981)-more particu larly, the question whether the protection offered by that decision terminates at some point. The Court's res olution of that question will affect the conduct of federal criminal investigations and trials. The United States therefore has a significant interest in the Court's dispo sition of this case.

STATEMENT

1. In 2003, a social worker contacted the Hagers town Police Department about allegations that respon dent had ordered his three-year-old son to perform fel latio on him. On August 7, 2003, Detective Shane Blankenship met with respondent at the Maryland Cor rectional Institute-Hagerstown, where respondent was serving a sentence for an unrelated crime. Detective Blankenship's written report states that he advised re spondent of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and that respondent stated that he did not want to talk about the allegations without an attor ney present. Detective Blankenship terminated the in terview, and the investigation was closed that same year. Pet. App. 2a-3a, 85a.

In February 2006, the social worker made another referral after respondent's son made more specific alle gations. The case was assigned to Detective Paul Hoo ver because Detective Blankenship was on leave. Detec tive Hoover knew of the previous investigation, but he did not know respondent had requested an attorney dur ing the August 7, 2003 interview. In the meantime, re spondent had remained incarcerated, though he had been transferred to the Roxbury Correctional Institute, where he was confined in the general population. Pet. App. 3a & n.1, 86a, 95a.

On March 2, 2006, Detective Hoover and the social worker met with respondent at the Roxbury Correc tional Institute. The interview, which lasted approxi mately 30 minutes, took place in a maintenance room that contained a desk and three chairs. Detective Hoo ver was not armed, and respondent was not handcuffed. Respondent expressed surprise at the renewed ques tioning and stated that he thought the investigation in volving his son had been closed. Respondent told Detec tive Hoover that he had previously met with Detective Blankenship, but did not mention that he had requested an attorney during that meeting. Detective Hoover ad vised respondent of his Miranda rights, and respondent signed a form waiving them, including the right to have an attorney present during questioning. Respondent denied the fellatio allegation, but admitted masturbating in front of his son. He also agreed to take a polygraph examination. Pet. App. 3a-4a, 86a-87a; 8/29/06 Tr. 22-23.

On March 7, 2006, Detective Shawn Schultz gave respondent another set of Miranda warnings and then conducted the polygraph examination. Detective Schultz concluded that respondent's answers indicated deception, and Detectives Hoover and Schultz inter viewed respondent immediately afterwards in the same room that had been used on March 2, 2006. During that interview, respondent began to cry and stated: "I didn't force him. I didn't force him." Pet. App. 4a. At that point, respondent requested an attorney, and the detec tives terminated the interview. Ibid.; 8/29/06 Tr. 25-29.

2. Respondent was charged with a number of of fenses, including sexual child abuse. He moved to sup press his statements during the March 2, 2006 and March 7, 2006 interviews, arguing that they had been obtained in violation of Edwards v. Arizona, 451 U.S. 477 (1981). Pet. App. 4a-5a.

The trial court denied respondent's motion to sup press. Pet. App. 84a-98a. The court found that respon dent had "freely and voluntarily waived his right to counsel [and] his right to remain silent" on March 2, 2006 and March 7, 2006, and that there had been "a break in custody for Miranda purposes" between the August 7, 2003 and the March 2, 2006 interviews. Id. at 95a. After a bench trial on stipulated facts, the trial court found respondent guilty of sexual child abuse and sentenced him to 15 years of imprisonment on that charge. Id. at 5a-6a.

3. The Court of Appeals of Maryland reversed and remanded for further proceedings. Pet. App. 1a-81a.

a. The majority stated that, "[u]nder Edwards, a suspect who expresses a desire to have counsel cannot be subject to further interrogation until counsel has been made available to him or her, unless the accused initiates further communication." Pet. App. 8a. The majority acknowledged that more than two-and-a-half years had elapsed between respondent's invocation of his right to counsel during the interview with Detective Blankenship and his express waivers of that right during the interviews with Detective Hoover, the social worker, and Detective Schultz. Id. at 21a. The majority con cluded, however, "that the passage of time alone is in sufficient to expire the protections afforded by Ed wards." Id. at 27a.

The majority also rejected the State's argument that suppression was unwarranted because there was a "break in custody" between the August 7, 2003 and March 2, 2006 interviews. Pet. App. 28a-44a. The ma jority stated that "[a]ny 'break in custody' exception to Edwards * * * must mean something different than the test for determining custody for purposes of Miranda warnings," id. at 38a, and it held that any break-in-custody exception is categorically inapplicable to "an inmate who is subject to uninterrupted, continu ous incarceration between the first invocation of the right to counsel and a second interrogation," id. at 42a.

b. Two judges dissented. Pet. App. 45a-81a. In their view, there were "at least two independent rea sons" for declining "to apply the bright line rule of Ed wards to [respondent's] case": (1) the "break in time of over two years"; and (2) the presence of "a non- pretextual break in custody." Id. at 46a (footnote omit ted); see id. at 66a-78a.

The dissenters also argued that, under Missouri v. Seibert, 542 U.S. 600 (2004), respondent's statements during the March 2006 interviews would have been ad missible even if Detective Blankenship had deliberately failed to give any Miranda warnings at all on August 7, 2003 and had obtained incriminating statements from respondent at that time. Pet. App. 50a-63a. In the dis senters' view, that fact made suppression especially "un warranted," because here all of the officers had "act[ed] in good faith," respondent was given Miranda warnings at the beginning of each of the three interviews, and the officers immediately "honor[ed] [respondent's] assertion of Miranda rights" each time he invoked them. Id. at 62a. The dissenters also argued that the majority's deci sion would "discourage police from investigating new leads to older crimes if a suspect in those crimes already is incarcerated for other crimes." Id. at 80a.

SUMMARY OF ARGUMENT

The Court of Appeals of Maryland erred in holding that the Fifth Amendment requires suppression of re spondent's warned and voluntary statements.

A. In Edwards v. Arizona, 451 U.S. 477 (1981), this Court held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initi ated custodial interrogation even if he has been advised of his rights." Id. at 484. The irrebuttable presumption of coercion that the Court announced in Edwards is a prophylactic measure designed to support the rules es tablished in Miranda v. Arizona, 384 U.S. 436 (1966). The Edwards rule thus should not extend more broadly than necessary to fulfill the purposes that motivated its creation or to cases in which the benefits of the pre sumption would be outweighed by its substantial costs to the truth-seeking process.

B. This Court has suggested-and the lower courts have broadly held-that the Edwards presumption ter minates when a suspect experiences a break in the cus todial pressures that triggered it. A break-in-custody limitation on Edwards is also consistent with the facts and basic premises of this Court's previous cases, which have focused on the risk that continued detention for purposes of interrogation will degrade a suspect's ability to make a knowing and voluntary choice about whether to continue to assert his Fifth Amendment rights.

C. Respondent, although a prison inmate, experi enced a break in custody when he returned from interro gation to the general prison population. Service of a prison sentence does not translate into continuous cus tody for purposes of either Miranda or Edwards be cause incarceration pursuant to a criminal conviction does not create the sort of coercive pressures that moti vated those decisions. A contrary rule would create sig nificant barriers to effective law enforcement by render ing an entire class of prison inmates-those who have validly invoked their Fifth Amendment right to counsel at any point during what may be a lengthy incarcera tion-effectively unapproachable for the remainder of their sentences. Because the record does not support a finding that respondent was subject to any restrictions beyond those generally accompanying prison life after he was returned to the prison population following the August 7, 2003 interview, the Edwards presumption ceased to apply at that point.

Any doubt that respondent experienced a break in custody for purposes of Edwards is eliminated by the two-and-a-half year lapse between the end of the August 7, 2003 interview and the March 2006 interrogations. Because a prisoner who is serving a previously imposed sentence knows that he will remain incarcerated wheth er or not he confesses, a prolonged period during which no interrogation occurs will serve to dissipate the sort of coercive pressures on which Miranda and the cases fol lowing it are premised.

ARGUMENT

THE FIFTH AMENDMENT DOES NOT REQUIRE SUPPRES SION OF RESPONDENT'S MARCH 2006 STATEMENTS

This Court has made clear that the irrebuttable pre sumption of coercion that it announced in Edwards v. Arizona, 451 U.S. 477 (1981), is a prophylactic measure designed to protect and simplify administration of the Fifth Amendment's core prohibition against the admis sion of a defendant's compelled statements in a criminal prosecution. That presumption should cease to apply where (as here) a break in custody has occurred between a suspect's initial invocation of his Fifth Amendment right to counsel and the commencement of a second in terrogation.

A. Edwards Establishes A Prophylactic Rule That Should Not Be Applied Where Its Purposes Are Not Served Or Where Its Benefits Do Not Outweigh Its Substantial Costs

1. The Fifth Amendment provides that "[n]o person shall * * * be compelled in any criminal case to be a witness against himself." U.S. Const. Amend. V. As this Court has recognized, the Self-Incrimination Clause "provides only that a person shall not be compelled to give evidence against himself." Michigan v. Tucker, 417 U.S. 433, 448 (1974); see Oregon v. Elstad, 470 U.S. 298, 306-307 (1985) (same). Accordingly, some "sort of coer cion, legal or factual" is a necessary predicate for any claim under that Clause. Hoffa v. United States, 385 U.S. 293, 304 (1966).

2. In Miranda v. Arizona, 384 U.S. 436 (1966), this Court concluded that custodial interrogation generates "pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id. at 467. The Court also de termined "that reliance on the traditional totality-of-the- circumstances test [to determine voluntariness] raised a risk of overlooking an involuntary custodial confes sion." Dickerson v. United States, 530 U.S. 428, 442 (2000).

Miranda thus held that, before conducting a custo dial interrogation, the police must inform a suspect that he has the right to remain silent, to consult with counsel, and to have counsel provided if he cannot afford one. The police must also inform the suspect that, if he waives those rights and makes a statement, anything he says may be used against him in court. 384 U.S. at 467- 473, 479. Failure to provide these warnings renders any resulting statements inadmissible during the prosecu tion's case in chief. Ibid.

In Edwards, the Court announced a "second layer of prophylaxis" for situations where a suspect invokes his Fifth Amendment-based right to have counsel present during custodial interrogation. McNeil v. Wisconsin, 501 U.S. 171, 176 (1991).1 The Court held that such a suspect "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communica tion, exchanges, or conversations with the police." Ed wards, 451 U.S. at 484-485. Edwards further held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interroga tion even if he has been advised of his rights." Id. at 484.

3. The Court has stated that Edwards is "designed to prevent police from badgering a defendant into waiv ing his previously asserted Miranda rights." Michigan v. Harvey, 494 U.S. 344, 350 (1990). It therefore consti tutes supplementary protection to "ensure[] that any statement made in subsequent interrogation is not the result of coercive pressures." Minnick v. Mississippi, 498 U.S. 146, 151 (1990). The Court also has stated that Edwards "conserves judicial resources which would oth erwise be expended in making difficult determinations of voluntariness, and implements the protections of Miranda in practical and straightforward terms." Ibid.

At the same time, the Court has emphasized the need to "consider the other side of the Miranda equation: the need for effective law enforcement." Davis v. United States, 512 U.S. 452, 461 (1994). "Admissions of guilt are * * * essential to society's compelling interest in finding, convicting, and punishing those who violate the law," Moran v. Burbine, 475 U.S. 412, 426 (1986), and "the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good," McNeil, 501 U.S. at 181. As a result, the suppression of statements that may in fact be "wholly voluntary," Michigan v. Mosley, 423 U.S. 96, 100 (1975), imposes a "high cost to legitimate law enforcement activity," Elstad, 470 U.S. at 312. That is particularly so of the Edwards rule, which "has only a tangential relation to truthfinding at trial." Solem v. Stumes, 465 U.S. 638, 643-644 (1984).

The Court has carefully scrutinized whether the ben efits of applying Miranda and its related doctrines in a particular situation are enough to warrant incurring their substantial costs. For example, the Court has held that a failure to administer the Miranda warnings does not render any resulting statement inadmissible for all purposes, see Harris v. New York, 401 U.S. 222, 226 (1971) (recognizing impeachment exception to Miranda), does not require the exclusion of evidence obtained as a result of such statements, see, e.g., United States v. Patane, 542 U.S. 630 (2004) (holding that a fail ure to give Miranda warnings does not require suppres sion of physical fruits of voluntary statements); Tucker, 417 U.S. at 450-451 (declining to require suppression of the testimony of a third party whom the police first iden tified through the defendant's unwarned statements), and generally does not prevent the admission of subse quent warned statements, see Elstad, 470 U.S. at 308- 309.

The Court has adopted the same approach with re spect to the "corollary to Miranda[]" (Arizona v. Roberson, 486 U.S. 675, 680 (1988)) that it announced in Edwards. In Davis, the Court declined "to create a third layer of prophylaxis" by "requir[ing] law enforce ment officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney." 512 U.S. at 459, 462. The Court acknowl edged that its holding "might disadvantage some sus pects who-because of fear, intimidation, lack of linguis tic skills, or a variety of other reasons-will not clearly articulate" their desire not to be questioned without an attorney present. Id. at 460. But the Court concluded that a rule requiring the cessation of questioning on an ambiguous invocation "would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity." Ibid. (quoting Mosley, 423 U.S. at 102).

B. The Edwards Presumption Should Terminate When There Is A Break In Miranda Custody

Edwards is based on a "presum[ption]" "that if a sus pect believes that he is not capable of undergoing [custo dial] questioning without advice of counsel, then * * * any subsequent waiver that has come at the authorities' behest * * * is itself the product of the 'inherently compelling pressures' and not the purely voluntary choice of the suspect." Roberson, 486 U.S. at 681 (quot ing Miranda, 384 U.S. at 467). This Court has sug gested, and the lower courts have uniformly and cor rectly held, that the Edwards presumption should cease when a suspect experiences a break in the custodial pressures that gave rise to it in the first place. That conclusion is consistent with the facts and underlying premises of this Court's decisions in Miranda, Edwards, and subsequent cases.

1. In McNeil, this Court held that an accused's invo cation of his Sixth Amendment right to counsel during a judicial proceeding does not constitute an invocation of the Fifth Amendment right to counsel that is the subject of the Edwards rule. See 501 U.S. at 173, 177-182; see note 1, supra. In "describ[ing] the nature and effects of * * * the Miranda-Edwards 'Fifth Amendment' right to counsel," the Court stated that the "presum[ption]" of involuntariness that it recognized in Edwards is based on the "assump[tion]" that "there has been no break in custody" between the two episodes of custodial interro gation. Id. at 177.

2. The decisions of the lower courts are in accord with this Court's statement in McNeil. As the court of appeals acknowledged, "[v]irtually every court that has considered this issue has held (or noted in dicta) that a break in custody permits the police to reapproach a sus pect who had previously asserted his Edwards rights and to try to obtain a waiver." Pet. App. 29a (quoting Marcy Strauss, Reinterrogation, 22 Hastings Const. L.Q. 359, 386 (1995)); see id. at 17a n.6 (citing cases); see also Kyger v. Carlton, 146 F.3d 374, 380 (6th Cir.) (stat ing that "courts have unanimously" held that "Edwards does not * * * apply to suspects who * * * are not in continuous custody"), cert. denied, 525 U.S. 1028 (1998).

3. The consensus that the Edwards presumption terminates when there is a break in custody is consistent with the underlying premises of this Court's decisions. Miranda was based on the "inherently compelling pres sures" that exist during "the process of in-custody inter rogation," and the Court stated that one of the chief sources of that pressure was "an interrogator's impreca tions, whether implied or expressly stated, that the in terrogation will continue until a confession is obtained." 384 U.S. 467-468 (emphases added). Edwards, in turn, concluded that it was "inconsistent with Miranda and its progeny for the authorities, at their instance, to reinter rogate an accused in custody if he has clearly asserted his right to counsel." Edwards, 451 U.S. at 485 (empha ses added).

The Court's post-Edwards decisions also contem plate a suspect who remains in continuous Miranda cus tody. In Roberson, the Court held that Edwards applies "[w]hether a contemplated reinterrogation concerns the same or a different offense, or whether the same or dif ferent law enforcement authorities are involved in the second investigation." 486 U.S. at 687. Roberson ex pressly relied on "the presumption of coercion that is created by prolonged police custody," which it concluded "does not disappear simply because the police have ap proached the suspect, still in custody, still without coun sel, about a separate investigation." Id. at 683, 686 (em phases added).

In Minnick, the Court held that "when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attor ney." 498 U.S. at 153. The Court explained that "[a] single consulation with an attorney does not remove the suspect from persistent attempts by officials to per suade him to waive his rights, or from the coercive pres sures that accompany custody and that may increase as custody is prolonged." Ibid. (emphases added).

To be sure, Edwards, Roberson, and Minnick also contain language that could be read to suggest that the Edwards presumption, once triggered, lasts forever. See, e.g., Minnick, 498 U.S. at 153; Roberson, 486 U.S. at 680-682; Edwards, 451 U.S. at 484-485. But "words of * * * opinions are to be read in the light of the facts of the case." Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944); see Mosley, 423 U.S. at 101 (acknowledging that a passage in Miranda "could be literally read to mean that a person who has invoked his 'right to silence' can never again be subjected to custodial interrogation by any police officer at any time or place on any sub ject," but rejecting that interpretation because it "would lead to absurd and unintended results"). And in each of those cases, the suspect was a pretrial arrestee who had remained in continuous custody from the time he in voked his Fifth Amendment right to counsel until the police reapproached him. See Minnick, 498 U.S. at 148- 149; Roberson, 486 U.S. at 678-679; Edwards, 451 U.S. at 478-479.

4. A break in custody does not, of course, establish that a suspect now wishes to speak with the police or that any waiver of his right to have counsel present dur ing a subsequent custodial interrogation is voluntary. Rather, a break in custody matters because it consti tutes a sufficiently significant change in circumstances as to make inappropriate an irrebuttable presumption to the contrary.

Even following a break in custody, a suspect who is to be interrogated anew still enjoys "the primary protec tion afforded suspects subject to custodial interroga tion"-"the Miranda warnings themselves." Davis, 512 U.S. at 460.2 If the suspect continues to view himself as unable "to cope with the pressures of custodial interro gation" without legal assistance, Roberson, 486 U.S. at 686, he need only do something he already has done and invoke his Fifth Amendment right to counsel, which would reactivate the Edwards presumption.3

C. Respondent Experienced A Break In Custody In This Case

The court of appeals determined that it need not de cide whether the Edwards presumption terminates upon a break in custody. Instead, it held that respondent "was held in continuous custody" for purposes of the Edwards rule during the more than two-and-a-half years that separated the August 7, 2003 and March 2, 2006 interviews. Pet. App. 31a. That is incorrect.

As the majority of lower courts that have considered the question have held,4 the mere fact of incarceration does not establish protracted and continuous "custody" for purposes of Miranda or Edwards. Rather, a person serving a prison sentence is not "in custody" for pur poses of those decisions unless he is subject to some ad ditional restraint beyond that inherent to incarceration. The court of appeals did not find that respondent was subject to any such additional restraints following the August 7, 2003 interview. And here, the conclusion that a break in custody occurred is further confirmed by the passing of more than two-and-a-half years before re spondent was again subjected to custodial interrogation.

1. a. This Court has stated that determining wheth er a person is in custody for purposes of Miranda re quires an examination of "all of the circumstances sur rounding the interrogation." Stansbury v. California, 511 U.S. 318, 322 (1994). The Court has described the general inquiry as "whether there is a formal arrest or restraint on freedom of movement of the degree associ ated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (internal quotation marks and citation omitted). In making that assess ment, however, it is necessary "to separate the restric tions on [a suspect's] freedom arising from police inter rogation and those incident to his background circum stances." United States v. Jamison, 509 F.3d 623, 629 (4th Cir. 2007). Cf. Florida v. Bostick, 501 U.S. 429, 435-436 (1991) (whether a bus passenger is "seiz[ed]" for Fourth Amendment purposes does not depend on whether the passenger is "free to leave" in a general sense but on the "principle that those words were in tended to capture"; that the passenger independently wishes to remain on the bus does not signify police coer cion).

In Berkemer v. McCarty, 468 U.S. 420 (1984), the Court held that roadside questioning during a traffic stop does not constitute "custodial interrogation" that triggers an officer's obligation to give the Miranda warnings. Id. at 435-442. The Court did not deny "that a traffic stop significantly curtails the 'freedom of action' of the driver and the passengers," id. at 436, but it de termined that "[f]idelity to the doctrine announced in Miranda" required its application only in "situations in which the concerns that powered the decision are impli cated," id. at 437.

In Minnesota v. Murphy, 465 U.S. 420 (1984), the Court held that Miranda warnings are unnecessary be fore "a statement made by a probationer to his proba tion officer * * * is admissible in a subsequent crimi nal proceeding." Id. at 425. The Court recognized that the probation officer had the power to "compel Murphy's attendance and truthful answers" and had "consciously sought incriminating evidence." Id. at 431. The Court also noted that Murphy "would be regarded as 'in cus tody' for purposes of federal habeas corpus." Id. at 430. But the Court stated that "custody for Miranda pur poses has been more narrowly circumscribed," ibid., and it determined that "[e]ven a cursory comparison of cus todial interrogation and probation interviews reveal[ed] the inaptness of the Minnesota Supreme Court's analogy to Miranda," id. at 433.

b. Respondent ceased to be "in custody" for pur poses of either Miranda or Edwards when Detective Blankenship terminated the August 7, 2003 interview and respondent was returned to the general prison pop ulation to continue serving his sentence on the unrelated charge. Respondent of course continued to experience severe restraints on his liberty at that point. But those restraints were not the product of any "process of in- custody interrogation." Miranda, 384 U.S. at 467. Rather, they were "incident to [respondent's] back ground circumstances." Jamison, 509 F.3d at 629.

The situation of a person who is serving a sentence of incarceration differs significantly from that of a person who is detained pending an investigation. The prisoner has not been "swept from familiar surroundings" and "thrust into an unfamiliar atmosphere" that was "cre ated for no purpose other than to subject the individual to the will of his examiner." Miranda, 384 U.S. at 457, 461. To the contrary, for someone who is already serv ing a prison sentence, "incarceration * * * is an accus tomed milieu." Isaacs v. Head, 300 F.3d 1232, 1266 (11th Cir. 2002), cert. denied, 538 U.S. 988 (2003). A prisoner also understands that his incarceration will continue whether or not he submits to interrogation about another crime. In that respect, too, he is far dif ferent from a person who has been detained for investi gatory purposes, who may be vulnerable to the sugges tion that his detention and accompanying interrogation will continue unless and until he confesses. See Min nick, 498 U.S. at 153; Miranda, 384 U.S. at 468; see also Roberson, 486 U.S. at 686 (referring to "the presumption of coercion that is created by prolonged police custody") (emphasis added).

c. The court of appeals erred in concluding that "[a]ny 'break in custody' exception to Edwards * * * must mean something different than the test for deter mining custody for purposes of Miranda warnings." Pet. App. 38a. Edwards is a "corollary to Miranda[,]" which "implement[s]" Miranda's protections against "the 'inherently compelling pressures' of custodial in terrogation." Roberson, 486 U.S. at 680-681 (emphasis added) (quoting Miranda, 384 U.S. 467). It is logical to use the same definition of "custody" for purposes of both the rule and its corollary, and a break-in-custody limita tion on Edwards would make little sense if it were untethered from its Miranda moorings. In both Minnick and Roberson, moreover, the Court used the term "custody" to describe not only the process of inter rogation itself but also periods of detention that are re lated to and accompany that questioning. See p. 13, su pra.

d. The approach adopted by the court of appeals would also create significant barriers to effective law enforcement. People who are already incarcerated for one crime frequently become suspects in another. Un der this Court's holding in Roberson, however, "[t]he Edwards rule * * * is not offense specific," meaning that "[o]nce a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless coun sel is present." McNeil, 501 U.S. at 177. In addition, prisons are even less likely than police stations to "have a '[prison] lawyer' present at all times to advise prison ers." Miranda, 384 U.S. at 474. A holding that all pris on inmates are in continuous custody for Edwards pur poses would risk making an entire category of in mates-i.e., those who asserted the right to counsel dur ing interrogation while serving their sentences-unap proachable for the duration of their often lengthy incar ceration. Like Miranda itself, Edwards cannot "sensi bly be read to create a per se proscription of indefinite duration." Mosley, 423 U.S. at 102.

The court of appeals' holding would also create sig nificant administrative problems. Prisoners are often transferred from one jail or prison to another, and agents of various local, state, or federal law enforcement agencies may wish to speak with them at different points during their incarceration. It is one thing to require police officers to find out whether a suspect has invoked his Fifth Amendment right to counsel at some point in the relatively recent past while being held as a prear raignment detainee. See Roberson, 486 U.S. at 687-688. It is quite another thing to require police to determine whether someone who is serving a long prison sentence has ever validly invoked his Fifth Amendment right to counsel at any time, in any place, and to any law enforce ment official during a period of continuous incarcera tion.5

e. A person who is serving a prison sentence can, of course, be placed "in custody" for purposes of Miranda and Edwards when he is subject to custodial interroga tion. See Mathis v. United States, 391 U.S. 1 (1968); see also, e.g., United States v. Chamberlain, 163 F.3d 499, 503-504 (8th Cir. 1999) (holding that Miranda warnings were required where a prisoner was escorted to a "se cure area" for questioning in a "police dominated" atmo sphere). The State has not denied that respondent was "in custody" for purposes of both Miranda and Ed wards during the August 7, 2003 and March 2006 inter views and that he was subject to "interrogation" during those times. Following the August 7, 2003 interview, however, respondent was returned to the general prison population, and nothing in the record suggests that he was subjected to any restrictions beyond those that gen erally accompany incarceration. As a result, respondent ceased to be "in custody" for purposes of Miranda and Edwards at that point, and the Edwards presumption terminated.6

2. If there were any doubt that respondent experi enced a break in custody in this case, the two-and-a-half years that elapsed between the August 7, 2003 interview and any further interrogation would eliminate it. In Edwards, officers reinitiated interrogation the day after the suspect invoked his right to counsel, see 451 U.S. at 479; in Roberson and Minnick, the gap was three days, see Minnick, 498 U.S. at 148-149; Roberson, 486 U.S. at 678. See also Solem, 465 U.S. at 641-642 (assuming that police officers violated Edwards when they twice reinitiated custodial interrogation within one day after the suspect invoked his right to counsel). Although the Court of Appeals of Maryland acknowledged that "[m]any courts have used the length between interroga tions as one relevant factor in considering whether a break in custody exists," Pet. App. 26a n.10, the court erred in declining to assign any weight to that factor in reaching its decision, see id. at 41a.

As already explained, a person can be "in custody" for purposes of both Miranda and Edwards even though he is not being subjected to interrogation at that partic ular moment. See p. 19, supra. But because it is the combination of interrogation and custody that creates the pressures that Miranda is designed to counteract, the absence of any anticipated or near-term prospect of questioning is highly relevant in assessing whether a genuine break in custody exists.

This Court's concern in both Miranda and Edwards "was that the 'interrogation environment' created by the interplay of interrogation and custody would 'subjugate the individual to the will of his examiner' and thereby undermine the privilege against compulsory self-incrimi nation." Rhode Island v. Innis, 446 U.S. 291, 299 (1980) (quoting Miranda, 384 U.S. at 457-458). That observa tion formed the context for this Court's statement in Roberson that, "to a suspect who has indicated his in ability to cope with the pressures of custodial interroga tion by requesting counsel, any further interrogation without counsel having been provided will surely exacer bate whatever compulsion to speak the suspect may be feeling." 486 U.S. at 686.

In contrast, when a prisoner knows he will remain incarcerated whether or not he confesses, a prolonged period during which no interrogation occurs will serve to dissipate the kind of coercive pressures on which Miranda is premised. That is particularly so where, as here, the previous interrogation ended without any indi cation that it would be renewed. See Pet. App. 3a-4a (noting that respondent "expressed his surprise at the renewed questioning on the matter involving his son"). A person who has resumed serving a sentence for an unrelated crime, and has not been approached about other allegations of criminal wrongdoing for more than two-and-half years following his invocation of his Fifth Amendment right to counsel will hardly be badgered into waiving that right simply because a different officer tries to initiate a conversation about those allegations after providing a fresh set of Miranda warnings. See Pet. App. 64a ("Two interrogations in two years is not 'badgering.'").7

CONCLUSION

The judgment of the Court of Appeals of Maryland should be reversed.

Respectfully submitted.

ELENA KAGAN
Solicitor General
RITA M. GLAVIN
Acting Assistant Attorney
General
MICHAEL R. DREEBEN
Deputy Solicitor General
TOBY J. HEYTENS
Assistant to the Solicitor
General
DEBORAH WATSON
Attorney

APRIL 2009

1 The Sixth Amendment right to counsel is not at issue here. That right "does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." McNeil, 501 U.S. at 175 (internal quotation marks and citation omitted); see Rothgery v. Gillespie County, 128 S. Ct. 2578, 2581 (2008). The Sixth Amendment right to counsel is also "offense- specific." Texas v. Cobb, 532 U.S. 162, 168 (2001). When respondent invoked his right to counsel on August 7, 2003, no prosecution had been commenced with respect to the allegations of sexual misconduct in volving his son.

2 Under current law, once formal charges are initiated, the Sixth Amendment independently bars the police from approaching the defendant about the charged offense if he has requested counsel at an arraignment or similar proceeding. See Michigan v. Jackson, 475 U.S. 625 (1986). On March 30, 2009, this Court entered an order in Montejo v. Louisiana, No. 07-1529 (argued Jan. 13, 2009), directing the parties to address the following question: "Should Michigan v. Jackson, 475 U.S. 625 (1986), be overruled?" The government has submitted an amicus brief in Montejo supporting the overruling of Jackson.

3 In Minnick, the Court declined to hold that the Edwards presump tion terminates whenever a suspect who has remained in continuous custody has consulted with an attorney. Among other reasons, the Court stated that such a rule "would undermine the advantages flowing from Edwards' 'clear and unequivocal' character" and create "a regime in which Edwards' protection could pass in and out of existence multiple times prior to arraignment." Minnick, 498 U.S. at 154-155. Adopting a break-in-custody rule would not undermine the advantages of treating Edwards as a clear rule because the question whether a suspect is in Miranda custody arises in every Edwards case, and the inquiry is no more difficult as to periods before the most recent interrogation than as to the time of the interrogation itself. And determining whether Edwards' protection revived would simply require determining whether the suspect unequivocally invoked the right to counsel under Davis.

4 See Tawfeq Saleh v. Fleming, 512 F.3d 548, 551 (9th Cir. 2008); United States v. Newton, 369 F.3d 659, 670 (2d Cir.), cert. denied, 543 U.S. 947 (2004); United States v. Arrington, 215 F.3d 855, 856-857 (8th Cir. 2000); United States v. Menzer, 29 F.3d 1223, 1230-1233 (7th Cir.), cert. denied, 513 U.S. 1002 (1994); Garcia v. Singletary, 13 F.3d 1487, 1490-1491 (11th Cir.), cert. denied, 513 U.S. 908 (1994); United States v. Hall, 905 F.2d 959, 962 (6th Cir. 1990); United States v. Cooper, 800 F.2d 412, 414-415 (4th Cir. 1986); see also Laurie Magid, Questioning the Question-Proof Inmate: Defining Miranda Custody for Incarcer ated Suspects, 58 Ohio St. L.J. 883, 936-939 & n.183 (1997) (citing additional cases).

5 In this case, Detectives Blankenship and Hoover worked for the same police department and respondent's invocation of his Fifth Amendment right to counsel was noted in Detective Blankenship's report of the August 7, 2003 interview. Pet. App. 2a-3a. Neither of those features, however, will invariably, or even typically, be present.

6 In United States v. Green, 592 A.2d 985 (D.C. App. 1991), cert. granted, 504 U.S. 908 (1992), cert. dismissed, 507 U.S. 545 (1993), the United States conceded before the District of Columbia Court of Ap peals "that defendant * * * was in continuous custody for purposes of the Edwards prophylactic rule" during a five-month period between his initial invocation of his Fifth Amendment right to counsel and his subsequent confession. Id. at 988 (quoting government's brief); accord 11/30/92 Tr. of Oral Arg. at 7, United States v. Green, supra (No. 91-1521) (counsel for the government agreeing that the defendant "had been in custody" during the relevant period). The defendant in Green, however, was not serving a sentence of incarceration during that period; rather, he was being held in connection with various pending charges. See 592 A.2d at 985-986; see also id. at 990 n.8 (declining to decide "whether different considerations would [have] come into play if the defendant" had been "transferred to the general prison popula tion following imposition of sentence").

7 This case presents no occasion to consider whether a break in custody that is extremely brief or provided for the express purpose of terminating the Edwards presumption would warrant a different ap proach. Cf. Missouri v. Seibert, 542 U.S. 600 (2004). In this case, Detective Hoover was unaware that respondent had invoked his Fifth Amendment right to counsel in the meeting with Detective Blanken ship. See Pet. App. 2a-3a & n.1, 86a.