Shatzer v. State , 405 Md. 585 ( 2008 )

Dissenting Opinion by HARRELL, J., which CATHELL, J. joins.

I respectfully dissent. There are at least two independent reasons that strike me as sufficient cause not to apply the bright line rule of Edwards¹ to Shatzer’s case A break in time of over two years is enough to disengage the blanket rule of Edwards. Further, a nonpretextual break in custody here makes inappropriate application of the holding in Edwards. Accordingly, Shatzer’s 2006 statements should have been admitted.

I. A Substantial Break in Time Disengages the Protections of Edwards

A. The Supreme Court’s Hint

The Majority Opinion adopts a reluctant tone because of the lack of direct guidance from the U.S. Supreme Court regarding limitations on the breadth of application of the Edwards rule, noting correctly that the “issue of whether the passage of time could terminate the protections of Edwards remains an open question.” Majority op. at 605, 954 A.2d at 1130. Casting the federal research net a bit wider, however, reveals an analogous line of cases where the Supreme Court indicated that statements taken after a Mirandoi² violation may be admitted after a substantial passage of time and finding the existence of curative measures. I would take the hint and conclude here that a substantial break in time relieves the need for Shatzer to receive the protections of Edwards.

In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), two police officers went to the home of a young suspect, Elstad, intent on arresting him in connection with a burglary. While one police officer discussed the arrest with the suspect’s mother in another part of the house, the second officer briefly stopped in the living room with Elstad. The latter officer mentioned that he “felt” that Elstad was involved with the burglary. Elstad responded by admitting that he was at the scene of the crime. The police officers took the suspect to the police station, where he waived his Miranda rights and signed a confession. The trial judge excluded Elstad’s admission, made in his living room, that he was at the scene of the crime, but admitted the confession made after he had received proper Miranda warnings. Elstad was convicted of burglary. The Oregon Court of Appeals reversed the conviction, holding that the signed confession also was inadmissible.

The Supreme Court granted certiorari to consider whether “the Self-Incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant.” Elstad, 470 U.S. at 303, 105 S.Ct. at 1290, 84 L.Ed.2d 222. The Court reversed, reinstating Elstad’s conviction. The Court noted that “the absence of any coercion or improper tactics undercuts the twin rationales-trustworthiness and deterrence-for a broader rule” mandating exclusion of the subsequent, “tainted” confession. Elstad, 470 U.S. at 308, 105 S.Ct. at 1293, 84 L.Ed.2d 222. The Court reasoned:

It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Elstad, 470 U.S. at 309, 105 S.Ct. at 1293, 84 L.Ed.2d 222.

The Court noted that “the causal connection between any psychological disadvantage created by his admission and his ultimate decision to cooperate is speculative and attenuated at best.” Elstad, 470 U.S. at 313-314, 105 S.Ct. at 1295-96, 84 L.Ed.2d 222. It explained that a failure to give a proper Miranda warning could be “cure[d]” by a later Miranda warning:

In these circumstances, a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as an “act of free will.”

Elstad, 470 U.S. at 310-311, 105 S.Ct. at 1294, 84 L.Ed.2d 222 (quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963)).

The Court concluded:

A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.

Elstad, 470 U.S. at 314, 105 S.Ct. at 1296, 84 L.Ed.2d 222. The need to iterate a bright line rule or test was avoided, however:

Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements.

Elstad, 470 U.S. at 318, 105 S.Ct. at 1297-98, 84 L.Ed.2d 222.

In Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), the Supreme Court addressed the validity of a “two-step” interrogation. Seibert was arrested in connection with the arson of her mobile home and resulting death of a mentally-ill teenager who resided with her family. She was questioned at the police station for 30 to 40 minutes without being given Miranda warnings. She made several incriminating statements during that time, including an admission that she knew that the victim “was meant to die in the fire.” The police then allowed her a 20 minute break for coffee and cigarettes. Before the questioning resumed, the police officer read her the Miranda warnings. Seibert waived her Miranda rights. The police then resumed exploration of her pre-warning admissions. She confirmed that the victim “was supposed to die in his sleep.”

After being charged with first degree murder, Seibert moved for the suppression of both the pre-warning and post-warning statements. The police officer testified at the suppression hearing that Seibert’s “ultimate statement was ‘largely a repeat of information ... obtained’ prior to the warning.” Seibert, 542 U.S. at 606, 124 S.Ct. 2601, 2606, 159 L.Ed.2d 643. He further testified that this “two-step” strategy was a police interrogation technique in which he had been trained:

At the suppression hearing, Officer Hanrahan testified that he made a “conscious decision” to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question “until I get the answer that she’s already provided once.”

Seibert, 542 U.S. at 605-606, 124 S.Ct. 2601, 2606, 159 L.Ed.2d 643.

The trial court excluded the pre-warning statements, but admitted her post-warning statements. Seibert was convicted of murder.

The Supreme Court reversed her conviction. Justice Souter wrote the plurality opinion, in which Justices Stevens, Ginsburg, and Breyer joined. Justice Kennedy wrote a concurrence, as did Justice Breyer. Justice O’Connor dissented, joined by Chief Justice Rehnquist and Justices Scalia and Thomas.

The plurality opinion summarized the questions raised by the “two-step” interrogation procedure:

The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.

Seibert, 542 U.S. at 611-612, 124 S.Ct. 2601, 2610, 159 L.Ed.2d 643. The plurality answered its first rhetorical question regarding the “effectiveness” of the warning given in Seibert:

Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.

Seibert, 542 U.S. at 613, 124 S.Ct. 2601, 2611, 159 L.Ed.2d 643. The Court implied, however, that the proximity in time of the two interrogations was a factor in determining whether the Miranda warnings retained their effectiveness. “[I]t would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.” Seibert, 542 U.S. at 614, 124 S.Ct. 2601, 2611, 159 L.Ed.2d 643.

The Court distinguished the “two-step” procedure in Seibert from the unwarned admission in Elstad. The Seibert Court began its analysis of Elstad by noting the benign nature of the interrogation in Elstad:

This Court noted that the pause in the living room “was not to interrogate the suspect but to notify his mother of the reason for his arrest,” and described the incident as having “none of the earmarks of coercion,” The Court, indeed, took care to mention that the officer’s initial failure to warn was an “oversight” that “may have been the result of confusion as to whether the brief exchange qualified as ‘custodial interrogation’ or ... may simply have reflected ... reluctance to initiate an alarming police procedure before [an officer] had spoken with respondent’s mother.”

Seibert, 542 U.S. at 614, 124 S.Ct. 2601, 2611, 159 L.Ed.2d 643 (citations omitted). Continuing, the Seibert Court stated, “[I]t is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic questioning in that particular case, but posing no threat to warn-first practice generally.” Seibert, 542 U.S. at 615, 124 S.Ct. 2601, 2612, 159 L.Ed.2d 643.

Comparing the two cases, the Seibert plurality crafted a list of factors that should be considered in evaluating “two-step” interrogations:

The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.

Seibert, 542 U.S. at 615-16, 124 S.Ct. 2601, 2612, 159 L.Ed.2d 643.

Those factors, applied to the facts in Seibert required suppression of the post-warning statements.

At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings. The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used. Nothing was said or done to dispel the oddity of warning about legal rights to silence and counsel right after the police had led her through a systematic interrogation, and any uncertainty on her part about a right to stop talking about matters previously discussed would only have been aggravated by the way Officer Hanrahan set the scene by saying “we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?” The impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given. It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.

Seibert, 542 U.S. at 616-617, 124 S.Ct. 2601, 2612-13, 159 L.Ed.2d 643 (citations and footnotes omitted).

Justice Breyer, although joining the plurality opinion, authored a concurrence as well. He stated that, “in my view, the following simple rule should apply to the two-stage interrogation technique: Courts should exclude the ‘fruits’ of the initial unwarned questioning unless the failure to warn was in good faith.” Seibert, 542 U.S. at 617, 124 S.Ct. 2601, 2613, 159 L.Ed.2d 643 (Breyer, J., concurring).

Justice Kennedy’s concurrence is particularly important, as he represents the fifth vote for the judgment in Seibert.³ See, e.g., United States v. Liddy, 478 F.2d 586, 586, (D.C.Cir.1972) (Leventhal, J., writing separately) (“I begin with the premise that the Branzburg[v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972)] decision is controlled in the last analysis by the concurring opinion of Justice Powell (408 U.S. at 709, 92 S.Ct. at 2670) as the fifth Justice of the majority.”). He began by noting that “[e]vidence is admissible when the central concerns of Miranda are not likely to be implicated and when other objectives of the criminal justice system are best served by its introduction.” Seibert, 542 U.S. at 618-619, 124 S.Ct. 2601, 2614, 159 L.Ed.2d 643 (Kennedy, J., concurring). Justice Kennedy then compared Elstad -with the facts in Seibert.

In my view, Elstad was correct in its reasoning and its result. Elstad reflects a balanced and pragmatic approach to enforcement of the Miranda warning. An officer may not realize that a suspect is in custody and warnings are required. The officer may not plan to question the suspect or may be waiting for a more appropriate time. Skilled investigators often interview suspects multiple times, and good police work may involve referring to prior statements to test their veracity or to refresh recollection. In light of these realities it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning. See Elstad, 470 U.S., at 309, 105 S.Ct. 1285, 84 L.Ed.2d 222 (“It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings ... so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.”). That approach would serve “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the ... testimony.” Id., at 308, 105 S.Ct. 1285, 84 L.Ed.2d 222.

This case presents different considerations. The police used a two-step questioning technique based on a deliberate violation of Miranda. The Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given. As Justice SOUTER points out, the two-step technique permits the accused to conclude that the right not to respond did not exist when the earlier incriminating statements were made. The strategy is based on the assumption that Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory statements have already been obtained. This tactic relies on an intentional misrepresentation of the protection that Miranda offers and does not serve any legitimate objectives that might otherwise justify its use.

Seibert, 542 U.S. at 620-621, 124 S.Ct. 2601, 2615, 159 L.Ed.2d 643 (Kennedy, J., concurring) (omissions in original).

Justice Kennedy, however, disagreed with the plurality’s multi-factor test. He noted that he would instead “apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” Seibert, 542 U.S. at 622, 124 S.Ct. 2601, 2616, 159 L.Ed.2d 643 (Kennedy, J., concurring). His test was:

If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn.

Seibert, 542 U.S. at 622, 124 S.Ct. 2601, 2616, 159 L.Ed.2d 643 (Kennedy, J., concurring).

Thus, we find in Seibert three different tests offered to determine if a statement, after an unwarned admission, is admissible: the plurality’s multi-factor test; Justice Breyer’s good faith test; and Justice Kennedy’s curative measures test. Under all of them, Shatzer’s statements made after the 2006 Miranda warnings would be admissible.

1. Plurality Test

Applying the factors articulated by the plurality in Seibert, it is clear that Shatzer’s statements would be admissible. The 2006 interrogations at issue in the present case cannot be viewed as an extension of the 2003 interrogation. The two-year break in time itself is sufficient. In addition, there was a change in interrogators and location. It may not be said that the interrogations here were “systematic, exhaustive, and managed with psychological skill.” 542 U.S. at 616, 124 S.Ct. 2601, 2612, 159 L.Ed.2d 643.

The Seibert plurality analysis inquires: “Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier?” 542 U.S. at 612, 124 S.Ct. 2601, 2610, 159 L.Ed.2d 643. The second question, modified to reflect the facts of this case, should be framed as: “Could the 2006 Miranda warnings reasonably convey that Shatzer could choose to consult an attorney before talking even if he had exercised that same right over two years earlier?” I would answer both of these questions in the affirmative. There can be no question that Shatzer was aware that he had a meaningful choice regarding his right to consult with counsel.⁴

2. Justice Breyer’s Good Faith Test

The actions of the interrogators here meet the definition of good faith. There is no evidence, nor could there be, that the interrogators conspired to avoid the requirements of Miranda by delaying an interrogation 31 months. The officers’ actions were taken in the utmost good faith.

3. Justice Kennedy’s Curative Measures Test

Justice Kennedy would require that, where police officers willfully avoid necessary Miranda warnings, subsequent statements must be excluded unless “curative measures are taken.” “[A] substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances----” Seibert, 542 U.S. at 622, 124 S.Ct. at 2616, 159 L.Ed.2d 643. In Shatzer’s case, there was over a two-year break in time and a new Miranda warning. The goal of the “curative measures” is “to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver.” Id. In the present case, the police immediately ceased interrogation upon Shatzer’s invocation of his Miranda rights. Two years later, they again read him those rights, which he voluntarily waived. A reasonable person in Shatzer’s position, and indeed Shatzer himself, would “understand the import and effect of the Miranda warning.” Thus, under Justice Kennedy’s analysis, the narrowest analysis forming the five-vote majority in Seibert, Shatzer’s post-warning statements would be admissible even if they were obtained as a result of-a deliberate “two-step” interrogation.

B. Distinction between Seibert and the Present Case

The obvious distinction between Seibert and the present case is that Seibert involved “unwarned” statements given prior to Miranda warnings, warnings deliberately withheld by the police in order to conceal the rights available to the suspect. Shatzer’s case does not. Shatzer invoked his Miranda rights, and the interrogation immediately was halted. Over two years later, the police gave Shatzer another Miranda warning, and he waived his Miranda rights. As noted above, under any of the prevailing tests in Seibert, especially Justice Kennedy’s, Shatzer’s later statements would be admissible. Under the Majority Opinion’s analysis here, Shatzer’s later statements are excluded. This is an unwarranted result.

The Seibert tests permit the introduction of statements even where the police mislead deliberately the suspect in order to avoid the protections afforded by Miranda. According to the Majority Opinion, by contrast, where the police act in good faith, timely give Miranda warnings, and honor a suspect’s assertion of Miranda rights, a suspect’s statements over two years later, even if proceeded by a Miranda warning, are inadmissible. The situation in Seibert was a far more egregious violation of the spirit and letter of Miranda than the technical, good faith oversight by the latter investigator in the present case. Yet, the statements in Seibert receive more favorable treatment. Today, the Majority Opinion essentially says to the police officers who conducted the 2006 interrogations, “We are sorry you acted in good faith and honored both the spirit and letter of Miranda. Because you did so, the statements are inadmissible. If only you had withheld deliberately the Miranda warning, as in Seibert, then perhaps those statements would be admissible following a new Miranda warning and similar break in time.” What type of police conduct is encouraged by treating statements obtained by deceit and concealment of rights more favorably than those statements obtained by honoring a suspect’s Miranda rights? I take note of the Supreme Court’s acceptance of statements preceded by egregious Miranda violations in Seibert and would hold that a substantial break in time and a second Miranda warning disengages the need for Edwards’ protections where the police have acted in good faith.

C. Policy Goals of the Miranda!Edwards

The Majority Opinion applies the per se Edwards rule, refusing to recognize a break in time exception, without apparent consideration of the policy objectives behind the rule and whether they are furthered by strict application here. The Majority Opinion correctly notes that “[t]he primary purposes of the Edwards rule are to ensure that any statement made in subsequent interrogation is not the result of coercive pressures, to prevent police from badgering a defendant, and to conserve judicial resources by relieving courts from having to make difficult determinations of voluntariness.” Majority op. at 593-94, 954 A.2d at 1123. None of those laudable goals are furthered by the outcome reached in the Majority Opinion.

There is no contention here, nor could there be, that Shatzer’s statements were the product of coercion. The police officers conducted the 2006 interrogations within permissible legal bounds. There is no evidence that Shatzer did not understand the nature of the interrogation or his legal rights. In Elstad, the Court noted that “the causal connection between any psychological disadvantage created by his admission and his ultimate decision to cooperate is speculative and attenuated at best.” Elstad, 470 U.S. at 313-314, 105 S.Ct. at 1295-96, 84 L.Ed.2d 222. I can conceive of no plausible argument that Shatzer suffered a “psychological disadvantage” because the police interrogated him a second time two years after he invoked his right to consult counsel.

The present case has nothing to do with police badgering. Detective Hoover, without actual knowledge that Shatzer previously had requested an attorney, interrogated Shatzer over two years after the original request. Two interrogations in two years is not “badgering.” See Marcy Strauss, Reinterrogation, 22 Hastings Const.L.Q. 359, 396-97 (1995) (“In other words, the fear in Edwards that repeated attempts to question the suspect will exacerbate the already significant compulsion to speak is significantly lessened when the police make no effort to question the suspect for a substantial period of time.”). As the Court of Special Appeals noted in Clark v. State, 140 Md.App. 540, 598-599, 781 A.2d 913, 947-48 (2001):

The practical effect of adopting the rule suggested by-appellant would produce absurd results. It would create a class of prisoners who are forever question proof-even though law enforcement officers would often have no way of knowing that the prisoner enjoys question-proof status.

Edwards, Roberson,[⁵] and Minnie[⁶] were all cases in which reinterrogation took place within three days of the prisoner’s invocations of their right to counsel. The evil sought to be avoided was police badgering. But with a gap of more than five years between police interrogation sessions, it is impossible to say that the Montgomery County police “badgered” Clark into waiving his right to counsel. Application of the Edwards rule to cases like the one at hand would not help achieve Edwards’s goal of preventing police badgering, nor would it accomplish any other discern-able public good.

Common sense dictates that, if a rule is devised to prevent badgering a suspect into giving up his right to counsel, and because of an immense time gap, no badgering even arguably occurred, then blind obedience to the rule is not required.

The Majority Opinion notes that one of the benefits of the bright line Edwards rule is to “reliev[e] courts from having to make difficult determinations of voluntariness.” Majority op. at 593-94, 954 A.2d at 1123. In essence, this is an appeal to Edwards’ simplicity. Nonetheless “the apparent simplicity of the prophylactic nature of the [Edwards ] rules may be misleading. In order to avoid absurd results, the rules may have to incorporate some ‘case-specific’ considerations.” George E. Dix, Promises, Confessions, and Wayne LaFave’s Bright Line Rule Analysis, 1993 U. III. L.Rev. 207, 231 (1993). See also Strauss, supra, at 361 (“Yet this seemingly clear, bright-line rule has proven remarkably blurry.”). The Majority Opinion only adds to the confusion. Although attempting to preserve the simplicity of Edwards, the Majority Opinion holds that “in custody” for Edwards purposes is different than “in custody” for Miranda purposes. See, infra, part III.

Furthermore, the mere fact that no exceptions have been recognized yet for a bright line rule cannot justify not approving such an exception where called for by common sense and persuasive jurisprudence. In other words, the desirability of bright line rules “must be secondary to the content of the rules.” Strauss, supra, at 377. The Majority Opinion inappropriately places the goal of “simplicity” above all other substantive policy objectives.

II. Break in Custody Disengages Edwards Protections Although the Majority Opinion declines to address it, I would join the almost universal majority of courts and commentators that recognize that Edwards’ protections are disengaged by a non-pretextual break in custody. See, e.g., Kochutin v. State, 875 P.2d 778, 779 (Alaska App.1994) (“The continuous custody requirement has been universally recognized by federal courts of appeal and appears to be a well-established feature of the Edwards rule.”); Elizabeth Levy, Non-Continuous Custody and the Miranda-Edwards Rule: Break in Custody Severs Safeguards, 20 New Eng. J. on Ceim & Civ. Confinement 539, 569 (1994) (“The courts have unanimously declined to extend the holding in Minnick to noncontinuous custody cases.”); Strauss, supra, at 386 (“Virtually every court that has considered this issue has held (or noted in dicta) that a break in custody permits the police to reapproach a suspect who had previously asserted his Edwards rights and to try to obtain a waiver.”). In sum:

Under existing law, officials can approach an incarcerated suspect who earlier invoked his right to counsel if that inmate’s question-proof status ended with a break in custody between the invocation and the later approach for questioning. Thus, a critical question for law enforcement is whether a continuously incarcerated suspect can experience a break in custody that will leave him available for questioning, notwithstanding his earlier invocation of the right to counsel.

Laurie Magid, Questioning the Question-proof Inmate: Defining Miranda Custody for Incarcerated Suspects, 58 Ohio St. L.J. 883, 932 (1997) (footnotes omitted).

III. Two Years in a Correction Facility Constitutes a “Break in Custody”

In its analysis of whether a prisoner serving a sentence at a correctional facility can experience a “break in custody,” the Majority Opinion, in my view, errs.

First, the Majority Opinion appears to overlook the word “break” in “break in custody.” It maintains that Shatzer was “not free simply to leave the interrogation room, but had to comply with restrictions on his movement according to the rules and regulations of the correction facility under the supervision of prison guards.” Majority op. at 617-18, 954 A.2d at 1137. The point of reference seems to be the prison interrogation room. This arguably establishes that, at the exact time of the 2006 interrogations, Shatzer was in custody. It does not establish that Shatzer was in custody prior to stepping into the interrogation room. When he was in the interrogation room, in custody, the officers gave Shatzer the Miranda warning as required. The Majority Opinion equates Shatzer’s status in the interrogation room at the prison as the same as being in the prison generally. This is not the case. Even if Shatzer was “in custody” at the time of the 2006 interrogation, he was not in custody twenty minutes, twenty days, or twenty months before that interrogation. The Majority Opinion simply is incorrect when it states that “[njothing had changed since Shatzer’s first invocation of his right to counsel----“ Majority op. at 617, 954 A.2d at 1137. Something had changed. Shatzer spent many months outside of Miranda, and Edwards, custody.

The issue in the present case is not whether Shatzer was in custody while he was being interrogated in 2006. He was. Accordingly, he was given a Miranda warning. The issue is whether Shatzer was in custody in his daily life at the correction facility prior to the 2006 interrogation. It is the lack of custody prior to the 2006 interrogation that creates the relevant “break” in custody.

Second, the Majority Opinion, curiously, relies upon a state case of statutory interpretation, Dedo v. State, 343 Md. 2, 680 A.2d 464 (1996), to define the term “custody” as applied to a federal constitutional right. In the name of preserving a simple “bright line” rule, the Majority Opinion adds substantial complexity to the Miranda doctrine. “In custody” no longer means “in custody.” Under the Majority Opinion’s analysis, custody means one thing under Miranda, and yet another thing under Edwards. The Edwards rule is a remedy designed to protect a suspect from Miranda violations. But, according to the Majority Opinion here, “any ‘break in custody’ exception to Edwards ... must mean something different than the test for determining custody for purposes of Miranda warnings.” Majority op. at 615, 954 A.2d at 1136. The Majority Opinion, ignoring the close, corollary relationship between “custody” in Miranda and Edwards, instead, with a bit of creativity, compares the “custody” requirement of the sentencing credit statute at issue in Dedo. See Arizona v. Roberson, 486 U.S. 675, 680, 108 S.Ct. 2093, 2097, 100 L.Ed.2d 704 (1988) (noting that the “rule of the Edwards case came as a corollary to Miranda [ ] ... ”); Eugene L. Shapiro, Thinking the Unthinkable: Recasting the Presumption of Edwards v. Arizona, 53 Okla. L.Rev. 11, 22 (2000) (noting that the “rule of Edwards” is derived from the “rule of Miranda”). I would hold that the definition of custody employed to determine whether a suspect should have been informed of his rights (Miranda) should be the same as the definition applied in cases where the suspect chooses to invoke those rights (Edwards).

The Majority Opinion ignores the definitions of “in custody” provided by the progeny of Edwards’ jurisprudential ancestor, Miranda. The Majority Opinion ignores a closely related federal constitutional rule regarding criminal procedure and instead utilizes an unrelated state statutory rule that concerns substantive criminal sentencing.⁷ According to the Majority Opinion, “in custody” for Edwards purposes is better defined by a state sentencing statute than an inherently related federal constitutional rule. Majority op. at 616-17, 954 A.2d at 1136. In sum, reliance on Dedo v. State, 343 Md. 2, 9, 680 A.2d 464, 468 (1996), and similar cases is inappropriate.⁸

I, accordingly, would use federal constitutional law, including Miranda progeny, to determine the meaning of “in custody” for purposes of the Edwards rule.

A. Cases Addressing Edwards Custody

There appear to be only a few cases that address whether a suspect is in Edwards custody (as distinguished from Miranda custody). The Sixth Circuit held that a defendant in a state penitentiary is not “in custody” for purposes of Edwards:

Defendant Hall was captured and returned to the Eddy-ville penitentiary in August of 1988. At his arraignment, an attorney was appointed for the defendant. Hall spoke to his attorney concerning those charges. Three months later, a threatening letter was sent from the penitentiary to the President of the United States. Two Secret Service Agents questioned Hall about his involvement. The District Court held a hearing and specifically found that Hall waived his Miranda protection. Hall admits he answered a few questions and may have known something about the letter. Hall remained in jail, but he was there because he was already serving a prior sentence. Hall was no stranger to the state penitentiary. In fact, Hall was not ‘in custody” as that term has been used in the context of Edwards and Roberson. One could readily argue that Hall was more comfortable within the surroundings in which he was interrogated than the two Secret Service agents.

United States v. Hall, 905 F.2d 959, 962 (1990). I find the analysis of the Sixth Circuit in Hall more persuasive than the analysis of the Court of Appeals of Alaska in Carr v. State, 840 P.2d 1000 (Ala.App.1992), the only case cited by the Majority Opinion that distinguishes the definition of custody under Edwards from the definition of custody under Miranda. Majority op. at 618-19, 954 A.2d at 1138.

Where the Majority Opinion does address federal caselaw regarding a “break in custody” under Edwards, its attempts to distinguish the cases are unpersuasive. The Majority Opinion seeks to distinguish Isaacs v. Head, 300 F.3d 1232, 1267 (11th Cir.2002), on the ground that the suspect there was subject to a break in custody because he had been convicted of the crime for which he was interrogated previously. Upon closer analysis, however, it is apparent that the nature of prison life compared to the atmosphere in a police interrogation room was integral to the court’s decision. See Isaacs, 300 F.3d at 1267 (“This approach recognizes that incarceration in the general prison population is the accustomed milieu for many inmates, rather than the type of coercive situation that was the source of concern in Miranda and its progeny.”).

The Majority Opinion’s distinction of United States v. Arrington, 215 F.3d 855, 856 (8th Cir.2000), is similarly unpersuasive. The Majority Opinion correctly notes that the conviction and sentencing for the crime for which the suspect was interrogated was an intervening event in Arrington. Equally important, however, is the fact that the suspect was transferred from “police custody to correctional custody.” Arrington, 215 F.3d at 856. “At that point, Arrington was no longer ‘in custody’ as that term has been used in the context of Edwards and Roberson____’’Arrington, 215 F.3d at 856-57 (internal quotation omitted).

The Majority Opinion’s attempt to distinguish the Court of Special Appeals’s opinion in Clark v. State, 140 Md.App. 540, 781 A.2d 913 (2001), falls short. The Majority Opinion contends that the Clark panel found “relevant” the fact that the suspect in that case, in the interval between the two interrogations, pled guilty to the crime for which his was interrogated originally. Turning to what the intermediate appellate court deemed persuasive, however, the real holding becomes clear:

For the foregoing reasons, as well as those set forth in Arrington, the portion of the law review article by Magid, quoted supra, and Chief Judge Bryner’s dissent in Kochutin, we hold that: (1) a break in custody is an exception to the rule set forth in Edwards; (2) for Miranda purposes, the five plus years appellant spent in prison after invoking his right to counsel constituted a break in custody; (3) the trial court did not violate the Edwards rule in denying appellant’s motion to suppress his September 1998 statement to police.

Clark, 140 Md.App. at 599-600, 781 A.2d at 948 (footnote omitted and emphasis added).

B. Cases Addressing Miranda Custody

Applying the Miranda analogies, the Majority Opinion acknowledges that today’s holding that incarceration constitutes custody per se places Maryland in the minority of jurisdictions that have considered the issue under Miranda. See Majority op. at 612, 954 A.2d at 1134 (noting the “majority view that prison does not constitute per se custody for Miranda purposes without the finding of some additional restraint”). The majority, and better reasoned, view is that a prisoner in a correctional facility is not “in custody” for purposes of Miranda. See Magid, supra, at 935-36 (“After Mathis,[⁹] numerous state and lower courts expressly held that not all incarceration constitutes Miranda custody and that incarceration does not ipso facto render an interrogation custodial.” (internal quotation omitted)). “Eight of the twelve Circuit Courts have ruled that incarceration does not always constitute custody for Miranda purposes.” Magid, supra, at 936.

The Fourth Circuit is in agreement:

We also decline to read Mathis as compelling the use of Miranda warnings prior to all prisoner interrogations and hold that a prison inmate is not automatically always in “custody” within the meaning of Miranda. Conley’s view of the Mathis decision would seriously disrupt prison administration by requiring, as a prudential measure, formal warnings prior to many of the myriad informal conversations between inmates and prison guards which may touch on past or future criminal activity and which may yield potentially incriminating statements useful at trial. As the Ninth Circuit pointed out, this approach would “torture [Miranda ] to the illogical position of providing greater protection to a prisoner than to his nonimprisoned counterpart.” Cervantes, 589 F.2d at 427. Such a result would be directly at odds with established constitutional doctrine that while persons in government-imposed confinement retain various rights secured by the Bill of Rights, they retain them in forms qualified by the exigencies of prison administration and the special governmental interests that result.

United States v. Conley, 779 F.2d 970, 972-73 (1985). The Fourth Circuit noted that the better approach is to determine custody by looking “to the circumstances of the interrogation to determine whether the inmate was subjected to more than the usual restraint on a prisoner’s liberty to depart.” Conley, 779 F.2d 970, 973.¹⁰

Conley relied on the Ninth Circuit’s opinion in Cervantes v. Walker, 589 F.2d 424, 428 (1978):

The concept of “restriction” is significant in the prison setting, for it implies the need for a showing that the officers have in some way acted upon the defendant so as to have “deprived (him) of his freedom of action in any significant way,” Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612 (footnote omitted). In the prison situation, this necessarily implies a change in the surroundings of the prisoner which results in an added imposition on his freedom of movement. Thus, restriction is a relative concept, one not determined exclusively by lack of freedom to leave. Rather, we look to some act which places further limitations on the prisoner.

Cervantes, 589 F.2d 424, 428.

The logic behind the differentiation between the police station, where a suspect would be in Miranda custody, and daily life in a correctional facility, where a prisoner is not in Miranda custody, is that a contrast should be drawn between the acquired familiarity of the confines of the correction facility and the intimidating presence of a police interrogation room.

The principal difference is in the interrogation room. Miranda’s presumption was designed in part to influence police behavior which was sometimes spontaneous, under a range of circumstances which often included the wish to obtain a quick confession from a recently apprehended suspect. The absolute requirement that Miranda’s procedures be implemented, coupled with an irrebuttable presumption of compulsion if they were not, was an effective tool in directing police activities. The context of Edwards is quite different.

Shapiro, supra, at 31.

Further:

When a defendant leaves the station house, such as on bail, and resumes the normal routines of life, the Court has recognized that he no longer requires the protection of the Edwards prophylactic rule. Such a defendant is entitled to the usual Miranda protections, but not the additional prophylactic protection of being rendered question-proof. Likewise, the inmate who has assumed his new routine in prison no longer needs the extra protection of Edwards. The restraints necessarily imposed by incarceration become familiar matters to inmates and do not create the coercive circumstances in which it must be presumed that one’s free will is overborne.

Magid, supra, at 947-49.

In his dissent in Kochutin v. State, 813 P.2d 298, 309-10 (Alaska App.1991), Chief Judge Bryner made a similar distinction between the police interrogation room and general prison life:

When a person is confined in custody solely as a sentenced prisoner, with no charges pending, the issue of guilt resolved by a final verdict, and the terms and conditions of future confinement clearly defined in a written judgment that is a matter of public record, the anxiety and uncertainty that support Miranda’s finding of inherent coercion simply cease to exist. When custody is not related to any pending or unresolved matter, it seems to me that there is little cause for concern that a police officer will appear to control the suspect’s fate, at least in the absence of a showing that the officer’s conduct somehow creates an atmosphere of custody going beyond that to which the suspect is accustomed in his normal setting.

If it is safe to say under existing case law that a sentenced prisoner cannot automatically be deemed to be in continuing Miranda custody, then it is equally safe to say that a sentenced prisoner who invokes the right to counsel upon being interrogated under circumstances amounting to Miranda custody and is thereafter returned to normal sentenced-prisoner status should not automatically be deemed to be in continuous custody under Edwards. Once returned to the ordinary routine of other sentenced prisoners-without any vestige of the inherently coercive circumstances incidental to custodial interrogation-the prisoner should be treated, for Edwards purposes, in the same manner as any person who has been arrested, questioned in custody, and released. [Footnote and citations omitted].

IV. Policy Implications of Today’s Ruling

The ruling today has troubling policy implications.

That a rule may be easily stated, though, does not mean that it clearly guides conduct. Application of a long-lasting bar on questioning inmates is enormously difficult in practice. In determining how to proceed during an investigation in which an inmate becomes a suspect, a police officer would have to find out when, if ever, the inmate had invoked his right to counsel with regard to any crime and when, if ever, the inmate had been released from incarceration. This can be a highly formidable task. Many incarcerated suspects will have previously been convicted or at least questioned about numerous other crimes. Many will have been convicted or questioned in far flung parts of the country over the course of many years by law enforcement officials from many different jurisdictions. It will often be virtually impossible to determine whether a suspect who has been incarcerated for a number of years has ever invoked his right to counsel and whether he has had any periods of non-confinement after the invocation.

Magid, supra, at 927-28.

Under the Majority Opinion’s holding, all law enforcement officers from every jurisdiction and agency¹¹ will be held strictly liable for failure to discover that a suspect previously had invoked the Fifth Amendment right to counsel in connection with any outstanding criminal investigation.¹² Any suspect who invokes such a right is forever unquestionable.

The scope of the holding in the Majority Opinion is boundless. For example, if an incarcerated suspect commits an assault while in prison, are investigators prohibited from interrogating the suspect regarding the newly committed assault after a new Miranda warning? Do they need to review the notes from every previous interrogation of that suspect in every jurisdiction and every previously opened criminal investigation to determine if he has, at any point in his life, invoked the right to counsel in a criminal charge that has not been adjudicated? If police have reason to believe that a suspect was present at a crime scene, and thus could provide vital, eye-witness information, is the suspect still off-limits, even after a proper Miranda warning? See Shapiro, swpra, at 18 (“One wonders how Edwards’ own invocation might be evaluated today were it to arise in the context of assessing a reinterrogation by an oblivious officer from another state, years later, about another matter.”)

The Majority Opinion will discourage police from investigating new leads to older crimes if a suspect in those crimes already is incarcerated for other crimes. If the police fail to discover that at some interrogation, years ago and by another law enforcement agency, the suspect invoked his right to have counsel present, any statements, no matter how voluntary, will be excludable. The police would be better off to wait for the suspect’s release, thus ensuring a break in custody, and then interrogate the suspect. Of course, depending on the length of sentence that the suspect is serving, this delay guarantees that memories will fade, evidence will be lost, and other witnesses will move away or die. The Majority’s Opinion will place another obstacle, largely clerical in nature, in front of investigators who have the already unenviable assignment of investigating dormant or “cold cases.” ,

For all of these reasons, I would affirm the judgment of the Circuit Court for Washington County.

Judge CATHELL authorizes me to state that he joins this dissent.

1 . Edwards v. Arizona. 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

2 . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

3 . Where the Supreme Court splits in such a 4-1-4 manner, the concurring opinion is often considered pivotal to discerning a rule to be applied from the case if it provides the narrowest legal grounds upon which a majority of Justices agree. See City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 764 n. 9, 108 S.Ct. 2138, 2148 n. 9, 100 L.Ed.2d 771 (1988) ("When no single rationale commands a majority, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.' " (quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977)).

4 . The fact that Shatzer previously exercised his right to speak with an attorney provides even further indicia that he was aware he had such a choice. Shatzer witnessed first-hand how the process is designed to work. At the 2003 interrogation, after a few questions, Shatzer indicated he wished to speak with an attorney. The interrogation stopped immediately. No further questions were asked regarding the case for over two years. He witnessed the effect of his assertion of his rights. It cannot be maintained that, at the 2006 interrogations, Shatzer was unaware that he possessed a legitimate and meaningful right to consult with an attorney. Further proof of Shatzer’s knowledge of his right to an attorney is supplied by his request to stop the interrogation on 7 March 2006. There, he invoked his right to consult an attorney despite his obvious emotional distress.

5 . Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).

6 . Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990).

7 . For this reason, relying upon state criminal cases defining the crime of "escape” is inappropriate to define concepts associated with federal constitutional rights.

8 . In fact, the Majority Opinion, except for its definition of custody, relies largely on federal law. The Majority Opinion turned to a state statutory interpretation case for this point of law only.

9 . Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968).

10 . The Majority Opinion here also relies upon United States v. Redfield, 402 F.2d 454, 455 (4th Cir.1968) (per curiam). Redfield holds only that the prisoner was in custody when he was at "a prison disciplinary hearing,” where, presumably, the prisoner was not free to leave the room. It does not speak to the non-custodial nature of daily prison life. That distinction was clarified by the Fourth Circuit in Conley, discussed infra.

11 . In Minnick v. Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990), the Supreme Court reversed the murder conviction of suspect who requested an attorney in an interrogation before FBI investigators and was subsequently questioned by local authorities. Thus, the Majority Opinion’s holding today, combined with the facts of Minnick, means that a request to speak with an attorney before one law enforcement agency will prohibit another agency from re-opening questioning of that suspect two years later.

12 . In Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), the Supreme Court held that once a suspect requests counsel, police are prohibited from initiating a subsequent interrogation regarding a separate criminal investigation. The Majority Opinion's holding, combined with the facts and holding of Roberson, extends to almost an unfathomable scope.