United States v. Michelle Lyn Michaud

REINHARDT, Circuit Judge,

dissenting:

I dissent because the facts in this case present a clear cut violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and there is no basis in law for the unprecedented legal theory upon which the majority bases its contrary ruling.

As my colleagues recognize, in Edwards, the Supreme Court established a bright-line rule prohibiting the interrogation of a suspect in custody who invokes the right to counsel, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 485, 101 S.Ct. 1880 (emphasis added); see also id. at 486 n. 9, 101 S.Ct. 1880 (stating that authorities must show “the necessary fact that the accused, not the police, reopened the dialogue with the authorities”); Collazo v. Estelle, 940 F.2d 411, 418 (9th Cir.1991). The Supreme Court has repeatedly emphasized that Edwards provides a “rigid,” “bright-line” rule, and “clear and unequivocal guidelines” to law enforcement. Arizona v. Roberson, 486 U.S. 675, 681-82, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988); Michigan v. Jackson, 475 U.S. 625, 634, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).

Contrary to the majority’s position, Mi-chaud clearly did not “initiate” the communications with the police, as required by Edwards. There is no evidence that Mi-chaud ever stated that she wanted to talk to the authorities prior to the time they questioned her. The phone call to Deputy Conrad was made by Michaud’s cellmate, Agoroastos, who told the deputy that Mi-chaud “needed to talk to somebody.” Ago-roastos appears to have reached this conclusion on her own. The majority does not contend that Michaud ever told Agoroastos that she wanted to talk, let alone that she wanted to talk to the police; as the record shows, Michaud merely said to her, “I’m *740scared. I’m in a lot of trouble.”1 On that basis, Agoroastos made her decision that Michaud “needed to talk.” Michaud never said anything to Agoroastos that suggested that she herself was initiating a conversation with the police, that she desired to do so, or that she wished to talk with anyone at all. To me, it is clear that it was first Agoroastos, indirectly, and then Deputy Conrad, directly, who initiated the in-culpatory exchanges, and that Michaud was not the initiator.

Furthermore, even if one were to presume that someone who is in jail and has refused to talk to the police because she desires counsel would, upon discovering that her trouble is worse than she had previously thought, want to talk to someone right away, it is highly unreasonable to assume, as the majority blithely does, that it was the police to whom she wanted to speak. Obviously, it is far more likely that if Michaud really “needed to talk to somebody,” it was to the lawyer to whom she had said she wanted to speak two days earlier, even before her circumstances worsened.

The majority claims that although Mi-chaud remained silent, her conduct evinced a willingness to talk. In the course of reaching this unprecedented legal conclusion, my colleagues run roughshod over the facts as well as the law. They fail to acknowledge, for example, that by asking Agoroastos to bring Michaud to the front of the dorm area so that he could talk to her, it was Deputy Conrad who sought to initiate communications with Michaud, not vice-versa. Indeed, Michaud’s actions demonstrated only that she was in a state of extreme emotional upset, that she followed all directions she was given, and that she was not volunteering to talk to the police. When, in accordance with Deputy Conrad’s directions, Agoroastos took Mi-chaud by the arm and brought her to the gate, Michaud was in a state of acute distress: she was crying, but she said nothing. She remained silent even when Agoroastos discussed the nature of her criminal problem with Deputy Conrad, and then, subsequently, when she was taken to an isolation cell. She also maintained her silence for the hour in which she was left in that cell and after that, when she was being taken by Sergeant Minister from the cell to the interview room. During all of that time, Michaud remained silent: she never once made any statement or expressed any desire to talk.2

As Michaud remained silent at all times, she, of course, did not state to the deputy or her cellmate that she did not want to talk to the police. The majority argues that this demonstrates Michaud’s tacit approval of Agoroastos’s statements and her own willingness to talk, because “she could have easily said” she did not want to “subject herself to questioning.” It is true that Michaud could have said so, but she is not *741required to under Edwards. To the contrary, the rule the majority suggests is in direct violation of the spirit, the purpose, and the clear mandate of Edwards. The whole point of Edwards is that a suspect who has invoked her right to counsel may remain silent, and may not be questioned unless she breaks that silence by initiating communications with the police. She is not required to say anything further until after she consults with counsel (and, in fact, not even then). It is therefore strange indeed that the majority reasons that Michaud’s act of remaining silent is precisely what constitutes the initiation of communications with the police. If that becomes the rule, bye-bye Edwards.3

The majority argues that the police had the right, under Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), to clarify whether Mi-chaud was initiating a conversation with them. The problem with this argument is that Bradshaw applies only when the suspect makes a verbal inquiry of the police or otherwise makes a statement that reasonably leads the police to believe that she may desire to talk. In Bradshaw, the defendant asked, “ “Well, what is going to happen to me now?’ ” Id. at 1045, 103 S.Ct. 2830. The Court held that Bradshaw’s verbal statement — his question— rendered it appropriate for the officer to seek to clarify whether the defendant wanted to speak about the crime. Id. at 1046, 103 S.Ct. 2830. In this case, Mi-chaud never made any inquiry of, or statement to, the police at all. She simply remained silent, as Edwards makes clear is her unqualified right.

It is one thing to say that a suspect’s ambiguous statement may constitute the initiation of an uncounseled interrogation by law enforcement officials and that the police may therefore explore that ambiguity with the suspect; it is another to say that silence can trigger an officer’s right to question a suspect, notwithstanding the suspect’s prior assertion of her rights. Unless we maintain a clear line between a suspect’s speech that may be said to initiate exchanges with the police and nonverbal conduct that may not, we will relegate Edwards to the judicial junk pile where so many other enlightened decisions designed to protect individuals’ rights now rest. What is required under Edwards is clear — speech that invites further communication with the police. Conduct (or “behavior” as the majority terms it), ambiguous or otherwise, does not suffice. The majority’s ruling to the contrary finds no support in any opinion published in this circuit or any other, or in any Supreme Court decision.

It is irrelevant to the Edwards analysis that Michaud spoke freely and voluntarily after being asked if she wanted to talk. Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880; Desire v. Attorney General of California, 969 F.2d 802, 805 (9th Cir.1992); United States v. Whaley, 13 F.3d 963, 968 (6th Cir.1994). It is similarly irrelevant that Michaud was reread her Miranda rights after she began to speak. Roberson, 486 U.S. at 685, 108 S.Ct. 2093; Desire, 969 F.2d at 805. What is critical to the analysis is the fact that Michaud never said that she wished to talk to the authorities until after: a) she was told to meet the *742deputy; b) she was placed in an isolation cell; c) she was brought to an interrogation room; and d) Agent Campion asked her if it was true that she had something she wanted to get off her chest.4 It' was only after all of this police-initiated action that Michaud spoke.5

The majority points to the “absence of official coercion” as support for its holding that no violation of Edwards occurred. However, simply because the police do not badger a suspect into answering their questions does not mean that it becomes acceptable for the police to initiate discussions with her after she has asserted her right to counsel. Edwards is clear. It does not matter in what tone or manner the police speak; the police may not initiate the interrogation of a suspect who has invoked that right.

As the Supreme Court stated: “The merit of the Edwards decision lies in the clarity of its command and the certainty of its application.” Minnick v. Mississippi, 498 U.S. 146, 151, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). If we allow silence and body gestures to constitute “initiation,” including failures by upset and confused suspects to comment on the statements of others, the police will be able in most circumstances to find a justification for interrogating persons taken into custody despite their clear and affirmative invocation of the right to counsel. What is then left of the “clarity” and “certainty” of Edwards, a “clarity” and “certainty” that we were told as recently as 1990 was the essential benefit derived from the rule? Not much.

In sum, the majority gives a new meaning to the term “bright-line” when it holds that a “bright-line” rule that the defendant must “initiate” the conversation is satisfied by a defendant’s silence that constitutes “apparent” agreement, or “creat[es] the appearance of [a] desire,” that “indicated” that the defendant wants to do the opposite of what she has previously stated without qualification that she wishes to do. Similarly, if the majority’s explanations result in “clear and unequivocal guidelines” regarding the prohibition against further questioning of defendants, we can simply dispense entirely with the concept of “clear and unequivocal guidelines.” For, in addition to eliminating the bright-line distinction between speech and conduct, the majority creates a new and strange form of “clear and unequivocal” conduct: conduct that is not definitive, but that merely “ereat[es] an appearance of’ or “indicate[s],” in the perception of the police officers observing it, some kind of “apparent” desire to speak; conduct that, at the very least, would require judges as well as police officers, to attempt to discern, largely on the basis of the actions of third parties, a defendant’s unexpressed intentions to surrender her constitutional rights.

I believe that the authorities violated Michaud’s Fifth Amendment rights when they interrogated her on December 5, and then again in subsequent interviews on *743December 6, 7, and 8. Therefore, the statements made on those occasions should be suppressed. For these reasons, I respectfully dissent.

. See United States v. Rodriguez, 993 F.2d 1170, 1174 (5th Cir.1993) (holding that co-defendant's statement that, " 'they' wanted to speak to him,” was not initiating conversation as there was no testimony that defendant asked co-defendant to call FBI agent); cf. Neuschafer v. Whitley, 816 F.2d 1390, 1392-93 (9th Cir.1987) (holding that defendant initiated conversation because he passed a note to prison guard on duty indicating his desire to talk).

. To the extent that Deputy Conrad may have believed that, because Michaud was present, Agoroastos was accurately reporting Mi-chaud's desires, the proper course of action under Edwards was clear. It was not to isolate Michaud in a cell and then have an FBI agent come to the jail to interrogate her. Instead, the correct procedure would have been for Conrad simply to say to Agoroastos, in Michaud’s presence, "I cannot question her further, unless she tells me directly that she wishes to speak with me or with some other officer.”

. By arguing that Michaud's silence "initiated” communications with the police, the majority effectively uses Michaud’s silence against her. Such a use of her silence is contrary to the spirit of our jurisprudence on the use of silence against arrested suspects. See Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) (holding that use of post-Miranda silence for impeachment purposes violates 14th amendment); United States v. Whitehead, 200 F.3d 634, 639 (9th Cir.2000) (holding that State’s usage of or comment on defendant’s pre-Miranda, post-arrest silence is unconstitutional).

. A defendant’s statement in response to a question such as “do you want to talk about anything?” is not an initiation by the defendant; such a statement by the authorities is a direct violation of Edwards. Desire, 969 F.2d at 804.

. The majority characterizes these police actions as “reactions” in an attempt to suggest that they were in response to Michaud's initiation of a conversation. See Majority at 737, 738. However, as long as the officers’ actions were not in response to a statement personally made by the suspect, which in this case they were not, these "reactions” to the nonverbal conduct of Michaud or the statements made by third parties constitute “police-initiated” actions with respect to Michaud.