By Richard Guerra
Assistant Criminal District Attorney in Bexar County
People are messy. We constantly create novel situations that attorneys and judges can’t anticipate. The law—whose ghostly demarcations are blurred by human behavior—plays catch-up.
We often encounter these confusing situations during custodial interrogations, where the stress of confrontations between law enforcement and the accused creates unanticipated situations. Indeed, prosecutors are constantly confronting issues with Miranda.
But we can have nice things occasionally. And the Court of Criminal Appeal’s holding in State v. Johnson,[1] which carefully spells out a bright line rule concerning Miranda, is nice to have.
Background
Sedrick Johnson went to the police station to help search for his girlfriend’s missing child. The boy was 18 months old. The Dallas Police Department had multiple divisions involving hundreds of people searching for him.
At 2:30 p.m., a detective took Johnson to an interview room for some questioning. Nearly three and a half hours later, at 5:57 p.m., another officer interviewed Johnson. He was free to leave at any time during this interview.[2] Afterward, Johnson was alone in the room. At 7:18 p.m., Johnson left the room to ask about his children. Seventeen minutes later, Johnson returned to the hallway outside the interview room and asked where his children were. An officer told Johnson that his children were being questioned about a criminal offense. Johnson asked what offense. The response: kidnapping.
“Who says they were there?” Johnson asked.
“They did,” the officer responded. Johnson was handcuffed.
“OK. I need to talk to a lawyer.”
The police told Johnson that he had to sit in the interview room. Then, after some conversation, Johnson said, “I don’t mind talking to nobody as long as I know my kids are all right.” The police told Johnson that he was being arrested for out-of-county warrants. He asked to call his grandmother, but it was not permitted at that time. Johnson remained in the interview room for six hours. During that time, he called out to officers for help getting up from the floor, loosening his handcuffs, and getting some water. He asked about his warrants, about his girlfriend, and about his kids. Officers told him that interviews were ongoing and that he might need to be interviewed again.
No attorney was ever called.
Finally, at about 1:20 a.m., a detective entered the interview room. Nobody told this detective that Johnson had said he needed to talk to a lawyer. The detective introduced himself, provided Johnson with a Miranda warning card, and read the warnings required by Miranda and Code of Criminal Procedure Art. 38.22. Johnson signed and dated the card and then confessed. He told the detective that the missing child started throwing up while playing a game. Johnson wrapped him in a blanket and drove around, but he was afraid to take the boy to a hospital. He eventually led the police to the dumpster where he put the child’s body, which was later found in a landfill.
The State charged Johnson with injury to a child by omission and capital murder of a child under 10 years of age. He moved to suppress his confession and all the pictures or diagrams of the victim’s body. At the suppression hearing, the interrogating detective testified that he knew Johnson had been questioned before he arrived, but he was not aware that Johnson had said, “I want to talk to a lawyer.” The detective told the trial court that he would have stopped the interview if the defendant had said those words to him. The trial court granted Johnson’s motion to suppress.
On appeal the State conceded that Johnson was in custody when he requested an attorney.[3] However, the State argued that an interrogation had not begun because Johnson was not being questioned at that time. The Dallas Court of Appeals disagreed. According to the appellate court, Johnson’s questioning was ongoing from the first two interviews through the third. Thus, once Johnson was handcuffed, he was being interrogated. The appellate court reasoned that the police subjected Johnson to a “custodial interrogation environment.” The court effectively held that a person cannot invoke his Fifth Amendment right anticipatorily and “outside the custodial interrogation environment.” The court next held that Johnson’s invocation was unambiguous and that he did not subsequently revoke it by talking to the police. The State appealed to the Court of Criminal Appeals.
As the judges saw it
The CCA held that the lower court’s reliance on a “custodial interrogation environment” to establish a Miranda violation was error.[4] Its decision included a step-by-step analysis of Miranda’s development over multiple cases.
First, the CCA reiterated the United States Supreme Court’s holding in Miranda: A suspect has the right to have an attorney present during a custodial interrogation.[5] Consequently, a suspect must be informed of his right to counsel before custodial interrogation. If he requests counsel, then the interrogation must cease until an attorney is present. The Supreme Court has referred to this as a “prophylactic rule.”
Edwards v. Arizona added “a second layer of prophylaxis” to Miranda: Once a suspect invokes his right to counsel under Miranda, the police, after ceasing the interrogation, cannot attempt another interrogation, even after further Miranda warnings, unless the suspect has been given counsel or the suspect initiates further communication with the police.[6]
The U.S. Supreme Court established a third layer of prophylaxis in Minnick v. Mississippi, in which it held that once the Miranda-based right to counsel is invoked, the Edwards prohibition against additional police-initiated questioning continues—even after the suspect has consulted an attorney—if that attorney is not present during the interrogation.[7]
After reviewing these three prophylactic layers, the CCA echoed a consequential footnote from McNeil v. Wisconsin, in which the Supreme Court observed, “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation.’”[8] The Supreme Court ultimately determined that the three layers of prophylaxis established by the Miranda-Edwards-Minnick line of cases are “sufficient.”[9]
Later, in Pecina v. State, the CCA applied the Miranda-Edwards-Minnick line of cases in deciding that a defendant’s invocation of his Sixth Amendment right to have an attorney at a magistration hearing did not simultaneously invoke his Fifth Amendment right to counsel.[10] Specifically, the CCA found that “the judge’s magistration of the defendant didn’t trigger any Fifth Amendment right concerning custodial interrogation; that was done by the detectives at the beginning of their interrogation.”
With all this analysis in mind, the Johnson Court established a bright line rule: A suspect must be Mirandized before he can invoke his Fifth Amendment right to counsel.[11] In this case, Johnson was in custody, but he was not given Miranda warnings, and nobody tried to interrogate him. After receiving his Miranda warnings (after nearly six hours of being in custody), Johnson could have invoked his right to counsel. He did not.
The takeaway
The CCA plainly stated the rule: “The Miranda right to counsel—with all of its prophylactic protections—becomes ripe for invocation only after 1) Miranda warnings have been given while the suspect is in custody, or 2) if custodial Miranda warnings have not been given, when custodial interrogation begins.”[12]
This rule will most likely assist the prosecution of cases in which (often sophisticated) defendants immediately invoke their right to an attorney at the beginning of an investigation. That’s all well and good that they want an attorney, but they must invoke their right after receiving Miranda warnings. If no warnings are given, then Miranda still offers protection if the police begin an interrogation without giving the warnings.
This rule is easier to apply than the lower appellate court’s analysis of determining whether a suspect is being subjected to a custodial interrogation environment. However, if a defendant anticipatorily invokes his Fifth Amendment right to an attorney, the defense will likely argue that the interrogation had already started at that time. In this case, Johnson was in custody for six hours—in an interrogation room—before his interrogation began. The facts of this case do not indicate that the police purposefully kept Johnson in custody for such a long time after his request for a lawyer as part of a plan to gain a confession. I anticipate that defense attorneys will argue (and attempt to create a record that shows) the police employed such a strategy. These situations will likely be fact-specific.
This bright line rule is much appreciated. People are messy. And the law can be messier. As we enter a new year, it’s nice to have things neat and tidy—at least for a little while.
[1] State v. Johnson, No. PD-0665-23, 2024 WL 4757857 (Tex. Crim. App. Nov. 13, 2024).
[2] State v. Johnson, No. 05-22-00480-CR, 2023 WL 4676869, at *2 (Tex. App.—Dallas July 21, 2023), rev’d, No. PD-0665-23, 2024 WL 4757857 (Tex. Crim. App. Nov. 13, 2024).
[3] State v. Johnson, No. 05-22-00480-CR, 2023 WL 4676869, at *4 (Tex. App.—Dallas July 21, 2023), rev’d, No. PD-0665-23, 2024 WL 4757857 (Tex. Crim. App. Nov. 13, 2024).
[4] State v. Johnson, No. PD-0665-23, 2024 WL 4757857 (Tex. Crim. App. Nov. 13, 2024).
[5] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[6] In Edwards, the police ceased questioning the defendant after he invoked his right to counsel. But they returned the next morning to interview him again, read him his Miranda rights again, and gained a confession. Edwards v. Arizona, 451 U.S. 477, 479, 101 S. Ct. 1880, 1882, 68 L. Ed. 2d 378 (1981).
[7] In Minnick, law enforcement ceased interrogating the suspect after he requested an attorney. The suspect was appointed an attorney, with whom he spoke two or three times. Then, two days later, the police Mirandized and interrogated the suspect. Minnick v. Mississippi, 498 U.S. 146, 149, 111 S. Ct. 486, 488-489, 112 L. Ed. 2d 489 (1990).
[8] In McNeil, the Supreme Court held that the Sixth Amendment right to counsel—which had attached before the police Mirandized and interrogated the suspect about a different offense from the one for which the right had attached—was offense-specific. McNeil v. Wisconsin, 501 U.S. 171, 182 n.3, 111 S. Ct. 2204, 2211, 115 L. Ed. 2d 158 (1991).
[9] Montejo v. Louisiana, 556 U.S. 778, 794, 129 S. Ct. 2079, 2090, 173 L. Ed. 2d 955 (2009) (citing McNeil v. Wisconsin, 501 U.S. 171, 182 n.3, 111 S. Ct. 2204, 2211, 115 L. Ed. 2d 158 (1991)).
[10] Pecina v. State, 361 S.W.3d 68, 80 (Tex. Crim. App. 2012).
[11] State v. Johnson, No. PD-0665-23, 2024 WL 4757857, at *4 (Tex. Crim. App. Nov. 13, 2024).
[12] Id.