Anticipatory Miranda Invocation - Valid? NO!

By Charles Gillingham

The legal update was reading a case file recently where a suspect anticipatorily invoked the right to an attorney BEFORE any attempt at questioning and BEFORE Miranda warnings were given. The suspect immediately invoked the right to an attorney upon coming into contact with the officers prior to even being arrested (the officers took that as a clue!). The officers completed the arrest, transported the suspect, Mirandized him and interrogated him. Can they do that? Let's review.


A suspect cannot invoke rights he does not have. For instance in People v. Buskirk 175 Cal.App.4th 1436 (2009) the defendant invoked the right to an attorney BEFORE any attempt at questioning and BEFORE Miranda warnings were given. As Buskirk was arrested for a parole violation and immediately stated he wanted a lawyer. In this instance the suspect was in custody, but was not being interrogated. The officers made no attempt to speak with the suspect or follow up on his statement. Later, in the field, Miranda warnings were read and the suspect agreed to talk "depending on the circumstances." Finally, much later at the station, defendant waived and spoke with the detectives and confessed. The court held that one must be in custody AND being interrogated or about to be interrogated for an invocation to be valid. In Buskirk, the court found that an anticipatory invocation is not sufficient.


In People v. Nguyen 132 Cal.App.4th 350(2005), defendant was arrested during a car search for drugs. As defendant was being informed that she was under arrest defendant grabbed a cell phone and announced she intended to call her lawyer. Officers ordered her to put the phone down but Nguyen refused. Officers then took the cell phone from her and handcuffed the defendant. Nguyen was transported to the police station and around 15-20 minutes later defendant waived her rights and made incriminating statements.

The court reiterated that an invocation of the right to an attorney is not offense specific. In other words, once a suspect invokes the right to counsel regarding one offense, officers may not seek the suspect's permission to discuss other crimes unless counsel is present.

Here the court held, however, that the officers were merely trying to complete the arrest for the narcotics when the defendant was trying to make the call. There was no attempt to interrogate her, nor did there appear to be an attempt to interrogate. As there was no attempt to interrogate her, the court found that any invocation at that point in the proceedings was anticipatory and therefore the Miranda procedural safeguards did not yet apply.