More Miranda

by Charles Gillingham

The suspect in People v. Suff (2014) 58 Cal.4th 1013, murdered 12 women. The defendant appealed on a couple of grounds; he alleged an illegal detention and search and a Miranda violation. The legal update is not going to address the search and seizure part of the case, which is interesting, but rather is going to focus on the alleged Miranda violation.

REMEMBER an invocation of the right to an attorney or the right to remain silent must be UNAMBIGUOUS. It is not enough that a detective believes the suspect MAY be invoking. Consequently, the detective here did a great job. She understood that the initial statement by the defendant was not unambiguous and continued to question the defendant and got excellent evidence in what would be a death penalty trial.

FACTS

Defendant was arrested on January 9, 1992, between 10:00 p.m. and 10:30 p.m., for a violation of parole, and transported to the Riverside Police Department. A Detective began interrogating him approximately two hours later, at 12:30 a.m. on January 10. She gave him the Miranda warning and waiver, which he signed, and then he asked, "Do I need a lawyer?" She responded, "Well, I don't know. Do you need a lawyer?" He said, "I don't know. For what I've done, I don't see why I need a lawyer." Keers then said, "And all I'm doing is asking you to talk to me. Do you want to do that?" He said, "Okay."

The first phase of the interrogation continued until 1:10 a.m., at which time a technician arrived to collect hair and saliva samples. The interview resumed and continued until 2:45 a.m. During this early morning interrogation, Keers asked defendant for permission to search his home. By this time in the interrogation, the topics of prostitute killings, and evidence had been discussed. Defendant responded to the request to search his home by stating, "I need to know, am I being charged with this, because if I'm being charged with this I think I need a lawyer." Keers stated, "Well at this point, no you're not being charged with this," and defendant then consented to a search of his apartment.

Questioning resumed that afternoon at 2:50 p.m. and continued until 5:40 p.m. During this questioning, defendant admitted he had been in the orange groves and that there was a body in the orange groves. When pressed to tell them "about the body you left there," he said, "I better get a lawyer now. I better get a lawyer, because you think I did it and I didn't." Questioning continued, and defendant admitted taking a knife out of a victim's chest and putting it in his van.

In the trial court defendant moved to exclude "defendant's admission that he was in the orange grove where victim's body was found, saw the body, and pulled the knife out of her chest and kept it ...." The trial court ruled that defendant invoked his right to an attorney when he stated, "I better get a lawyer now. I better get a lawyer, because you think I did it and I didn't." Therefore, his statements about removing the knife and putting it in his van were excluded. Defendant contends that he invoked his right to counsel earlier, during the morning session when he stated, "if I'm being charged with this I think I need a lawyer."

HOLDING

In addition to having to make an unambiguous assertion to the right to counsel or the right to remain silent, a suspect may make a conditional waiver. In other words, the suspect may agree to speak if something else conditionally does or does not take place. If the officers agree to the condition they may continue speaking with the suspect.

Here, the suspect argued that it was a virtual certainty that he would be charged. Indeed, there was even a prosecutor monitoring the interview who could have made that decision. The Court here held that even if virtually certain, the suspect only requested an attorney if he was being charged. Because defendant was not charged at the time of his ambiguous invocation, the detective could still question him.

The second invocation was clear and the statements about removing the knife from the victim were properly excluded.