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Everett v. State11/24/2004
er Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . . A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
Innis, 446 U.S. at 300-02 (emphasis added) ( footnotes omitted).
A short time later the Supreme Court provided further guidelines regarding the boundaries of custodial interrogation. In Edwards v. Arizona, 451 U.S. 477 (1981), law enforcement officers immediately ceased the questioning upon the defendant's invocation of his right to remain silent and to counsel. The next day, however, two different officers went to the jail, and after giving Miranda warnings to the defendant, interrogated him. He then incriminated himself. 451 U.S. at 479. The Court held the confession was obtained in violation of Edwards's Fifth Amendment rights. Id. at 480. The Court reiterated "that an accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85 (emphasis added).
C. Testing the Limits of Interrogation
The question in this case is whether a law enforcement officer's request for a consent to search from, or service of an arrest warrant on, a defendant in custody who has invoked the right to counsel violates the Fifth Amendment.
The Supreme Court has distinguished between the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination:
The former arises from the fact that the suspect has been formally charged with a particular crime and thus is facing a state apparatus that has been geared up to prosecute him. The latter is protected by the prophylaxis of having an attorney present to counteract the inherent pressures of custodial interrogation, which arise from the fact of such interrogation and exist regardless of the number of crimes under investigation or whether those crimes have resulted in formal charges.
Arizona v. Roberson, 486 U.S. 675, 685 (1988). The scope of the right to counsel under Miranda is more limited than under the Sixth Amendment. The invocation of the right to counsel under Miranda does not require the immediate appointment of an attorney because the right extends only to interrogation. Miranda, 384 U.S. at 474 ("If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time."); see also Innis, 446 U.S. at 300 n.4 (stating that the definitions of "interrogation" under the Fifth and Sixth Amendments "are not necessarily interchangeable"). In Roberson, where the Court held that once a suspect has invoked the right to counsel under Miranda in one crime, the person cannot be interrogated regarding another crime, the Court stated that even if counsel has not been provided, police "are free to inform the suspect of the fact
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