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Reinitiating Communication with Police, Following Assertion of Right to Counsel

State v. Scott M. Hambly, 2008 WI 10, affirming 2006 WI App 256
For Hambly: Martha K. Askins, SPD, Madison Appellate


¶77      Whether a suspect “initiates” communication or dialogue does not depend solely on the time elapsing between the invocation of the right to counsel and the suspect’s beginning an exchange with law enforcement, although the lapse of time is a factor to consider.…

¶82      … [T]he defendant’s statement here that he did not understand why he was under arrest was clearly seeking information and constituted an initiation of communication with Rindt in the most ordinary sense of the word. The defendant’s statement did not merely relate “to routine incidents of the custodial relationship.” [93]The context of the defendant’s statement supports the conclusion that the statement evinced a willingness and a desire for a generalized discussion about the investigation.

¶89      In contrast to McDougal, in the present case, after the defendant invoked his Fifth Amendment Miranda right to counsel, the detective did not make any provocative statements about the arrest or the crime. Rather, the defendant began an exchange with Rindt with a comment to which the detective made a straightforward response. Under the totality of the circumstances in the present case the defendant’s comment evinced a willingness and a desire for a generalized discussion.

¶90      For the reasons set forth, we conclude that the defendant “initiated” further communication with Rindt.

On a distinct point: Can, for purposes of Edwards v. Arizona, a suspect initiate police contact through a 3rd party? Yes, according to Van Hook v. Anderson, 6th Cir No. 03-4207, 5/24/07.


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