Some Additional Thoughts on Maryland v. Shatzer

by Jack E. Call
Professor of Criminal Justice
Radford University

            In the last issue of the Bulletin, I discussed the decision of the Supreme Court in Maryland v. Shatzer (2010).1  In that case, the police had attempted to question Shatzer about allegations that he had molested his young son.  When Shatzer, who was in prison at the time, indicated that he did not want to speak to the investigating officer until he had counsel, the officer terminated the interrogation.  When the police failed to develop additional evidence against Shatzer on the molestation allegations, they closed the investigation.

            More than two years later, the police received new information about the earlier molestation allegations.  As a result, the case was re-opened and a new investigator went to a prison where Shatzer remained incarcerated to question him about the allegations.  (Shatzer had remained in prison during the period between the two interrogations).  Shatzer agreed to speak with the officer and made some incriminating statements.

            Shatzer argued that the second interrogation violated the Edwards Rule (a rule established in Edwards v. Arizona2).  The Edwards Rules prohibits further interrogation of a suspect who has made an unambiguous request for counsel unless counsel is present or unless the suspect initiates the discussion with the police and waives his right to counsel and his right to remain silent.

            The Supreme Court held in Shatzer that the Edwards Rule no longer applies after there has been a break in custody.  A major concern of the Court in the Edwards case was that the police would attempt to wear down a suspect who had requested counsel by leaving the suspect alone for a while, approach him again later, advise him of his rights again, and attempt to obtain a waiver of those rights.  If this effort failed, the police could leave the suspect alone again, wait some time, and attempt to interrogate again.

            This cycle might be repeated over and over until the suspect finally relented and agreed to waive his rights and talk to the police.  The Court’s decision in Shatzer indicated that the concerns about police attempts to wear down or badger a suspect into waiving his rights are no longer present once the suspect has been released from custody.  The suspect’s ability to return to a place of refuge permits the suspect to resume a place of comfort where he no longer is subject to the coercive pressures of the police.

            However, the Court also recognized in Shatzer that the coercive pressures of the police station (or any other place where the police attempt to interrogate a suspect who is in police custody) would continue to have “lingering effects” for some period of time after the suspect’s release from custody.  The Court decided in Shatzer (admittedly somewhat arbitrarily) that these lingering effects would continue for fourteen days.  As a result, the Edwards Rule remains in effect for fourteen days after the suspect’s release from custody.

            In the last issue of the Bulletin, I stated the Court’s holding in Shatzer in this way:  “once a suspect has invoked his right to counsel in custody and is then released, the police may not attempt to interrogate the suspect again, in the absence of counsel, until fourteen days after his release.”  However, since I wrote those words, I have become aware of an interesting question that had not occurred to me at the time I wrote them.

            The question is raised by the following hypothetical fact situation.  The police attempt to interrogate Taylor about a sexual assault for which he has been arrested.  Taylor indicates that he wants to talk to a lawyer, so the police terminate the interrogation.  The next day, Taylor makes bail and is released from custody.  Two days later, the police go to Taylor’s home and attempt to question him about the sexual assault.  He agrees to speak with the police and, in response to their questions, gives several incriminating responses.  Did the police questioning that took place at Taylor’s home violate the Edwards Rule, as interpreted by Shatzer?

            The way I stated the rule in Shatzer earlier seems to provide an easy answer to this question.  I indicated before that “once a suspect has invoked his right to counsel in custody [as Taylor did] and is released from custody [as Taylor was], the police may not attempt to interrogate the suspect again, in the absence of counsel, until fourteen days after his release [which the police did].”  The question to which Shatzer does not provide a clear answer is whether the rule in that case only applies to police attempts to interrogate a suspect who has invoked his right to counsel while the suspect is in custody.

                My earlier statement of the Shatzer rule suggests that the rule applies to all attempts to interrogate a suspect during the fourteen days following the suspect’s release from custody, regardless of whether the interrogation takes place in a custodial or non-custodial situation.  Does the Shatzer rule prohibit non-custodial interrogation of a suspect during the fourteen days following the suspect’s release from custody?

            Unfortunately, the Shatzer opinion does not provide a clear answer to this question.  In the Shatzer case itself, the second interrogation of Shatzer occurred in a custodial situation.  (Justice Scalia, writing the Court’s opinion in Shatzer, indicated that “[n]o one questions that Shatzer was in custody for Miranda purposes during the interviews with Detective Blankenship in 2003 and Detective Hoover in 2006”).  Therefore, the Court does not address directly the question of whether the Edwards Rule is violated by questioning a suspect in a non-custodial setting during the fourteen days following his release from custody.

            At one point in the Shatzer opinion, the Court makes a statement that suggests that the break-in-custody rule established in the case extends to all interrogations.  After discussing the Court’s three prior cases in which the Court had applied the Edwards Rule – the Edwards case itself, Arizona v. Roberson3, and Minnick v. Mississippi4 – the Court indicated that “[w]hen, unlike what happened in these three cases, a suspect has been released from his pretrial custody and has returned to his normal life for some time before the later attempted interrogation, there is little reason to think that his change of heart regarding interrogation without counsel has been coerced.”  This statement does not explicitly limit “the later attempted interrogation” to custodial interrogation.

            However, in another place in its opinion, the Court suggests that the break-in-custody rule might apply only to subsequent custodial interrogation.  The Court indicated that the 14-day “lingering effects” rule that it establishes “meets Shatzer's concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation.”  This statement makes reference to a concern about subsequent interrogation in custody, rather than all subsequent interrogations within fourteen days of release from custody.

            There are other reasons to think that the Shatzer rule may not extend to non-custodial interrogations occurring within fourteen days of release from custody.  The Edwards Rule, of course, is a rule that derives from the Miranda case itself.  Without Miranda, the Court would never have established the Edwards Rule, a rule designed to protect the rights established in Miranda.  The Miranda rules apply only to custodial interrogation.  A suspect in custody who is not subjected to interrogation does not have to be advised of his rights.  Similarly, a suspect who is interrogated but is not in custody also does not have to be advised of his rights.  Thus, the argument is that extending the Edwards Rule to non-custodial interrogation occurring within fourteen days of release from custody would extend Miranda beyond its intended protection – to non-custodial settings.

            On the other hand, it can be argued that the lingering effects of the custodial setting to which Shatzer refers should extend to all interrogations, not just custodial interrogations.  In order to protect adequately a suspect who has been released from custody from the continuing lingering coercive effects of that custody, the police must be prohibited from any interrogation of the suspect during the fourteen days following release (unless counsel is present or the suspect initiates the discussion).  Under this argument, the 14-day lingering effects rule creates a kind of legal fiction – that, for purposes of the Edwards Rule at least, a person subjected to custodial interrogation remains in custody for 14 days following release.

            Perhaps the strongest argument against this approach is that it seems unlikely that Justice Scalia, author of the Shatzer opinion but clearly not a strong supporter of Miranda, would have intended such a broad interpretation of the Shatzer holding.  Justice Scalia is on record as believing that Miranda should be overturned.5  He frequently writes or joins opinions that restrict the scope of Miranda.6  It would be ironic, indeed, if he wrote an opinion establishing a rule that extends some of the protections of Miranda beyond custodial interrogations.

            Nevertheless, the best that can be said at this point is that it is unclear whether the police may interrogate a person in a non-custodial setting within 14 days of the release of that person from custody.  Since a court decision resolving this issue would require a case where the police did interrogate a suspect in a non-custodial setting within 14 days of release from custody, there would be appear to be nothing wrong with adopting a practice of interrogating in such situations until the Supreme Court or a Virginia appellate court establishes a rule prohibiting such a practice.  The worst that could happen is that a prosecutor would be unable to use an incriminating statement obtained during such a non-custodial interrogation.

[1] 130 S.Ct. 1213 (2010).

[2] 451 U.S. 477 (1981).

[3] 486 U.S. 675 (1988).

[4] 498 U.S. 146 (1990).

[5] Dickerson v. U.S., 530 U.S. 428 (2000) (dissenting).

[6] See, for example, U.S. v. Patane, 542 U.S. 630 (2004); McNeil v. Wisconsin, 501 U.S. 171 (1991); and Davis v. U.S., 512 U.S. 452 (1994).

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.