U.S. v. Anthony D. Edwards, 08-1124. 

 

The Opinion of the court was delivered by:  Posner, Circuit Judge

 

The defendant was convicted by a jury of distributing 5 grams or more of crack and was sentenced to 108 months in prison. His appeal raises several issues.

 

After being arrested and jailed, he was given the Miranda warnings, and after agreeing to waive his Miranda rights was questioned for a quarter of an hour or so and then returned to his cell. Thirty to forty minutes after the waiver-which is to say roughly fifteen to twenty-five minutes after the completion of the questioning he was returned to the interview room for further questioning by another agent.

 

Before beginning, the agent showed the defendant the waiver form he had signed before the first round of questioning and asked him whether he understood his rights, and he replied that he did. The form made clear that he could stop the questioning at any time. But he argues that the admissions he made during the second round of questioning should not have been placed in evidence at the trial because the Miranda warnings had not been recited to him before the second round began.

 

The defendant asks us to adopt a doctrine of "staleness" that would require readministering the Miranda warnings after any break in an interrogation even, as in this case, a very short one if there is any reason to think that the person questioned may have forgotten or misunderstood the warnings or thought they had lapsed or been unable to claim them because of new pressures brought to bear on him after the break, though if his statement was coerced this would be an independent ground for suppression-coerced confessions were inadmissible long before the Miranda case. The defendant points out that the second interrogation was conducted by different officers from the first one and that he made inculpatory statements only at the second one. And he argues that he was in a frightened, emotional state throughout the entire period of the interrogations.

 

The cases do not require that the warnings be repeated after an interruption in the questioning, e.g., United States ex rel. Patton v. Thieret, 791 F.2d 543, 547-48 (7th Cir. 1986); United States v. Ferrer-Montoya, 483 F.3d 565, 569 (8th Cir. 2007) (per curiam); United States v. Rodriguez-Preciado, 399 F.3d 1118, 1128-29(9th Cir. 2005); see also Wyrick v. Fields, 459 U.S. 42, 48-49 (1982) (per curiam), even if the interruption is much longer than it was in this case. See, e.g., United States v. Diaz, 814 F.2d 454, 460 and n. 6 (7th Cir. 1987) (several hours); United States ex rel. Henne v. Fike, 563 F.2d 809, 813-14 (7th Cir. 1977) (per curiam) (nine hours); People v. Dela Pena, 72 F.3d 767, 769-70 (9th Cir. 1995) (nearly fifteen hours); Stumes v. Solem, 752 F.2d 317, 320 (8th Cir. 1985) (nearly five hours); Jarrell v. Balkcom, 735 F.2d 1242, 1253-54 (11th Cir. 1984) (three hours).

 

In Thieret the suspect was placed in a holding cell between the warnings and the defendant's waiver of his Miranda rights. In Diaz the warnings were given at the hotel where the suspect was arrested and his inculpatory statements came during the subsequent booking. In Fike the warnings were given in the evening and the statements the following morning, and the warnings and the interrogation were by different officers, as they were in Jarrell and in the present case.

 

In United States v. Pruden, 398 F.3d 241, 247-48 (3d Cir. 2005), roughly 20 hours and a change of location intervened between warnings and statement and the defendant was merely reminded before he made the statement that he had received the warnings the previous afternoon. The defendant points to a pair of state court cases and one district court case as contradicting the decisions we have cited, but the intervals in those cases were much longer than in the present case. Commonwealth v. Wideman, 334 A.2d 594, 598-99 (Pa. 1975) (12 hours); Commonwealth v. Riggins, 304 A.2d 473, 477-78 (Pa. 1973) (17 hours); United States v. Jones, 147 F. Supp. 2d 752, 761-62 (E.D. Mich. 2001) (18 hours).

 

Vagueness is the bane of legal reasoning. This case presents several examples, beginning with "staleness," a word with no proper application to a statement. What is a "stale statement"?

 

Interrogators might try to negate the Miranda warnings; had the second interrogator in this case told the defendant that he must answer his questions because a Miranda waiver is forever the answers could not have been used in evidence. See Hart v. Attorney General, 323 F.3d 884, 894-95 (11th Cir. 2003); United States v. Beale, 921 F.2d 1412, 1435 (11th Cir. 1991); United States v. San Juan-Cruz, 314 F.3d 384, 387-89 (9th Cir. 2002).

 

And likewise if, as in Ex parte J.D.H., 797 So. 2d 1130 (Ala. 2001), so much time had elapsed between the rounds of questioning-16 days in that case-that the agent should have realized that the defendant might well have forgotten the warnings, and specifically the paragraph tucked into the Miranda form that entitles a suspect to interrupt the questioning at any time and summon a lawyer. Yet even in J.D.H. the court emphasized circumstances beyond the long delay between interrogations in deciding that the inculpatory statement should have been suppressed.

The practical question is not whether Miranda warnings given to a defendant became "stale," or, though the courts love the phrase, whether the "totality of the circumstances" indicates that the inculpatory statement was made knowingly. It is whether the defendant when he gave the statement didn't realize he had a right to remain silent.

 

The Miranda form told him he had that right, and the presumption should be that he would remember this even if some time had elapsed between his receiving the warnings and undergoing the questioning that elicited the inculpatory statement. The cases do not speak in terms of a presumption but that is the practical effect of their reluctance to attach dispositive weight to a break in questioning, even when the break is protracted and other circumstances might have made it less likely that the defendant would remember that he could stop the questioning at any time. The presumption can be rebutted but was not in this case.

 

CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.

 

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