Interrogating A Suspect After Invocation of Counsel

by Charles Gillingham

It used to be that once a suspect invoked the right to an attorney in an interrogation, officers were prohibited from approaching the suspect and questioning her again. The only way to approach that suspect was when the suspect had consulted an attorney or the suspect approached the officers and reinitiated contact.
Edwards v. Arizona 451 U.S. 477

Recently, the U.S. Supreme Court in Maryland v. Shatzer 130 S.Ct. 1213, reviewed the Edwards rule and found it unrealistic. The Court set a bright line rule for when officers can approach a suspect who previously invoked the right to counsel.

The Court stated that officers must wait fourteen (14) days after an invocation of the right to an attorney before approaching a suspect to again attempt to question her. There must also be a break from custody for those 14 days.

Maryland v. Shatzer

Shatzer is a convicted child molester. Shatzer was serving a sentence in prison for child molest when detectives developed information that Shatzer molested his three year-old son. A detective went to the prison where Shatzer was housed, read Shatzer his Miranda warnings and attempted to question Shatzer. Shatzer invoked his right to an attorney. The case was closed.

Three years later, detectives reinterviewed the victim and again travelled to prison to interview Shatzer. Shatzer was again provided his Miranda warnings and was interviewed for 30 minutes. Shatzer never referred to his prior invocation. Shatzer made some admissions and agreed to a polygraph examination. Three days later investigators again Mirandized Shatzer and administered the polygraph. Upon telling Shatzer he had failed, Shatzer made further damaging admissions and then invoked his right to counsel. The interview was terminated. Shatzer moved to suppress his statements at trial, that motion was denied and Shatzer was convicted.

Shatzer Appeals.

Shatzer moved to suppress his statements as being violative of the Edwards v. Arizona rule, that held an invocation of the right to an attorney was an invocation forever more unless an attorney was brought in for the suspect and consulted or the suspect initiated the subsequent interrogation. The assumption in Edwards is that subsequent contact by officers is by its very nature coercive based upon continued custody or police pressure.


The U.S. Supreme Court acknowledged that state courts, including the California Supreme Court in People v. Storm (2002) 28 Cal.4th 1007, 1023-1024 (Holding a two day break sufficient), have found the Edwards rule inapplicable assuming there is a break in custodial status.

The Court then set out to decide how long a break in custody is long enough to insure that the suspect is not coerced into a subsequent Miranda waiver and statement.


The Court held that officers must wait 14 fourteen days to approach a suspect who invokes his right to an attorney during an interrogation. Further, the Court held that the suspect must be free of custody for that amount of time for the subsequent waiver to be valid. If the suspect remains in custody for those 14 days he may not be questioned.


The Court held that generally being in prison was a different status then being taken into an interrogation room and being questioned. Shatzer was able to return to his normal prison life after his interrogation. The Court held that under those circumstances the coercive nature of a subsequent interrogation was diminished as though Shatzer was released from custody. Thus, Shatzer could be reinterviewed as more than 14 days had passed between police contact which was defined as Miranda custody and general prison custody.

Chuck Gillingham is a veteran prosecutor. He is also an instructor for the California District Attorneys' Association and for Santa Clara University School of Law.