UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
MICHELLE LYN MICHAUD, Defendant-Appellant.
Argued and Submitted - March 12, 2001 - San
FISHER, Circuit Judge:
Appellant Michelle Michaud entered a conditional
guilty plea to a charge of violating 18 U.S.C. § 1201(a)(1),
kidnapping and transporting a victim across state lines. On appeal she
challenges her conviction, contending that her incriminating
statements should have been suppressed and her sentence was improperly
enhanced. For the reasons detailed below, we affirm.
After a joint investigation by the FBI and the
Placer County, California Sheriff's Department into a kidnapping and
sexual assault, law enforcement officials isolated Michaud and her
boyfriend, James Daveggio, as suspects and located them at a motel in
Stateline, Nevada. The Placer County police secured warrants for their
arrest on December 2, 1997.
Aware of the existence of the state warrants, FBI
Agent Lynn Ferrin led a group of agents to Michaud's hotel the
following day. Another agent knocked on Michaud's door, claimed to be
the assistant manager of the hotel and told her that her boyfriend was
sick and needed her assistance. In reality, Daveggio had already been
apprehended. When Michaud opened the door, the agents placed her under
arrest, took her to another hotel room and handcuffed her to a chair.
Ferrin secured Michaud's signature on consent forms
to search her room and her vehicle. He then advised her of her Miranda
rights, and she signed another form indicating she understood and
waived those rights.
FBI agents and Placer County detectives then
proceeded to interview Michaud. When she indicated she wanted to speak
to a lawyer, the interview was terminated and Michaud was booked into
the Douglas County, Nevada jail on the state warrant and for
possession of controlled substances. The federal agents' search of
Michaud's van revealed more evidence.
Based on this material, a magistrate judge issued a
federal arrest warrant for Michaud on December 5, 1997 on charges of
kidnapping and aiding and abetting. Also on December 5, Michaud and
her cellmate, Teresa Agoroastos, learned that Michaud and her
boyfriend had been featured on a television news report in connection
with a murder. Michaud became distraught, and began telling
Agoroastos, "I'm scared. I'm in a lot of trouble."
Agoroastos contacted Deputy Douglas Conrad over the
intercom and said that Michaud needed to talk to somebody. Conrad told
the women to meet him at the gate in front of their dorm. Agoroastos
led Michaud by the arm to the gate. At this point, both women were
crying. Agoroastos told Conrad that Michaud had information about a
murder and needed to talkto someone; Michaud remained silent, neither
confirming nordenying the statement.
Conrad told the women to return to their cellblock
and contacted his supervisor, Sergeant Arnie Digerud, who in turn
informed detectives of the request. Digerud then instructed Conrad to
place Michaud in a holding cell. Approximately one hour later, Douglas
County Sergeant Timothy Minister took Michaud to an interview room,
where they met with FBI Agent Christopher Campion.
After turning on a tape recorder, Campion said:
Michelle, we just started talking and uh, I just wantto ask you just
to make sure that I'm under, I'm clear that you want to talk to us, to
me, and to Detective Minister here, Tim, um, about something that's
obviously bothering you. You're obviously emotional right now and it's
something that you, you need to get off your chest. Is that true?
Michaud answered, "I have some information about the young lady who
was killed, a couple of days ago. Yes."
Minister and Campion then informed Michaud of her
Miranda rights, including her right to have an attorney present during
questioning. Once she indicated that she understood these rights and
signed a waiver, they began to interview her.
The interview lasted roughly nine hours. Campion
and Placer County Detective Desiree Carrington interviewed Michaud
again on December 6. The following day Michaud was hospitalized after
collapsing in her cell. She was interviewed at the hospital for
approximately an hour. The officers spoke to her again on December 8.
Also on December 8, Placer County yielded priority of their
prosecution to the federal government. Michaud was taken into federal
custody the next day, brought before a federal magistrate in Reno and
had counsel appointed for her. She was subsequently indicted on
charges of kidnapping and transportation across state lines and
conspiracy to commit the same, in violation of 18 U.S.C. § 1201(a)(1)
On October 27, 1998, Michaud moved to suppress the
statements she made during her interviews with law enforcement
officials. The district court denied this motion November 13, 1998,
after which Michaud entered a conditional guilty plea on the
kidnapping charge. On August 12, 1999 the court sentenced Michaud to
152 months in prison. This appeal followed.
Michaud argues that the court erred in denying her
motionto suppress her incriminating statements because her arrestwas
unlawful, state and federal officials colluded to deprive her of her
right to a timely appearance before a federal magistrate judge and she
was interrogated after invoking her right to counsel. We review
motions to suppress de novo, but were view the trial court's factual
findings for clear error. United States v. Kemmish, 120 F.3d 937, 939
(9th Cir. 1997).
A. Lawfulness of the Arrest
Michaud contends that the ruse the officers used to
persuade her to open the door of her hotel room violated her Fourth
Amendment rights, and that the inculpatory statements she subsequently
made to them should be suppressed as the fruits of the unlawful
arrest. She acknowledges that a valid warrant for her arrest existed
at the time of the ruse, but contends that "the Placer County warrant
was itself used as a ruse by the FBI to create an opportunity for
Michaud's objection to the use of trickery to
encourage herto open her hotel room door is unavailing, given the
existence of a valid warrant. We have held that "[t]here is no
constitutional mandate forbidding the use of deception in executing
avalid arrest warrant." Leahy v. United States , 272 F.2d 487,490 (9th
Cir. 1960); see also United States v. Contreras-Ceballos, 999 F.2d
432, 435 (9th Cir. 1993) (holding that an officer was justified in
claiming to be a Federal Express agent when executing a warrant).
Because the warrant was valid, we cannot accept her
argument that the FBI's use of the warrant was some how improper. We
affirm the district court's denial of Michaud's motion to suppress
based on the unlawfulnessof her arrest.
B. State and Federal Collusion
Michaud argues that the Placer County officers
colluded with the FBI agents to deprive her of her Sixth Amendment
right to counsel and her rights under Fed. R. Crim. P. 5(a) and 18
U.S.C. § 3501(c). Under Rule 5(a), an arrested individual must be
taken without unnecessary delay before a federal magistrate. We look
to § 3501(c) to determine whether another wise voluntary confession
made during a period of unnecessary delay must be excluded. United
States v. VanPoyck, 77 F.3d 285, 288 (9th Cir. 1996).
Under that provision: In any criminal prosecution
by the United States . ..a confession made or given by a person who is
a defendant therein, while such person was under arrest or other
detention in the custody of any law-enforcement officer or
law-enforcement agency, shall not be inadmissible solely because of
delay in bringing such person before a magistrate . . . if such
confession is found by the trial judge to have been made voluntarily
and if the weight to be given the confession is left to the jury and
if such confession was made or given by such person within six hours
immediately following his arrest or other detention: Provided, That
the time limitation contained in this subsection shall not apply in
any case in which the delay in bringing such person before such
magistrate or other officer beyond such six-hour period is foundby the
trial judge to be reasonable considering themeans of transportation
and the distance to be traveled to the nearest available such
magistrate or other officer.18 U.S.C. § 3501(c).
Thus, the provision creates a six-hour "safe
harbor" between the commencement of detention on a federal charge and
appearance before a magistrate judge during which a voluntary
confession is admissible. Voluntary confessions occurring after the
safe harbor period may still be admissible if the court determines
that the delay was reasonable or if public policy favors admission.
Van Poyck, 77 F.3dat 288-89.
Michaud was taken into federal custody on December
9 and promptly taken before a federal magistrate. She argues, however,
that her state custody was the result of collusion between state and
federal authorities; as such, the relevant delay should be the period
between her initial state arrest and her appearance before the federal
magistrate judge, some six days later.
The relevant delay may indeed be calculated from
the time of arrest by state or local authorities on state charges "if
state or local authorities, acting in collusion with federal officers,
were to arrest and detain someone in order to allow the federal agents
to interrogate [her] in violation of [her]right to a prompt federal
presentment." United States v.Alvarez-Sanchez, 511 U.S. 350, 359
The defendant has the burden to prove the existence
of such actual collaboration; "[a] bare suspicion that there was
cooperation between the two agencies designed to deny fundamental
rights is not sufficient." United States v. Doe, 155 F.3d 1070, 1078
(9thCir. 1998) (en banc) (quoting United States v. Leeds, 505 F.2d161,
163 (10th Cir. 1974)).Placer County police and the FBI had been
jointly investigating Michaud and Daveggio.
Michaud was arrested under aCalifornia state
warrant for kidnap and sexual assault and later booked by Nevada
authorities on drug charges. The FBI participated in her arrest and
questioned her after she was in custody. Interviews of persons in
state custody by federal authorities are permissible, and statements
obtained during such questioning are generally admissible. United
States v.Halbert, 436 F.2d 1226, 1229 (9th Cir. 1970); see
alsoAlvarez-Sanchez, 511 U.S. at 360.
The agents obtained a fed-eral warrant for
Michaud's arrest on December 5, obtained priority of prosecution from
state officials on December 8 and executed the warrant for her arrest
December 9. The cooperation between the state police and the FBI, both
in conducting interviews and in taking Michaud into federal custody,
appears on its face to have been unobjectionable. As soon as the
federal agents gathered sufficient evidence against Michaud from the
search of her van, they obtained an arrest warrant and took the steps
necessary to prosecute her in federal court.
A finding of collusion requires proof of a
deliberate intent to deprive a defendant of her federal procedural
rights. Doe,155 F.3d at 1078. The mere suspicion of collusion that
Michaud describes is insufficient. See id. Michaud offers no evidence
of actual collusion between the state authorities and the FBI to deny
her her federal right to appear before a magistrate judge. The
district court found that Michaud's allegations of collusion amounted
to "no more than unsupported suspicion," and determined that the
exchange of information between federal and state investigators was
On appeal, Michaud has not shown these factual
determinations to be clearly erroneous. See Kemmish, 120 F.3d at 939.
We therefore affirm the district court's holding that Michaud's rights
were not infringed by impermissible collusion between federal and
C. Custodial Interrogation
Once an accused has invoked her right to counsel
during interrogation, she may not be subjected to further police
interrogation "unless the accused [her]self initiates further
communication, exchanges, or conversations with the police. "Edwards
v. Arizona, 451 U.S. 477, 484-85 (1981).
During an interview with police on December 3,
Michaud indicated her desire to speak to an attorney, and the
interview was immediately terminated. She was not interviewed again
until December 5, when Agoroastos, leading her by the arm to the gate
outside Michaud's dorm, told Deputy Conrad that Michaud wanted to
speak to someone "about a murder" and Michaud subsequently confirmed
to Sergeant Minister from the Douglas County Sheriff's Department and
FBI Agent Campion that this was true.
We must therefore decide whether, under the facts
of this case, Michaud may be said to have initiated communication with
the police after having previously invoked her right to counsel. The
relevant facts, in all material respects undisputed, areas follows.
Conrad testified that Agoroastos summoned him on the intercom and told
him that Michaud "needed to talk tosomebody."
When Conrad approached Michaud and Agoroastos at
the gate, Agoroastos told him that Michaud "needed totalk to somebody
about a murder that had happened in Alpine County." In context,
"somebody" was reasonably understood to refer to the police
authorities. Michaud stood next to Agoroastos, crying, and said
She testified that at thispoint she was shaken up,
upset and scared. She heard Agoroastos tell Conrad she had information
about a murder and should talk to somebody; she stayed silent, neither
confirming nor denying the statement. Conrad told the women to return
to their cellblock and informed Digerud of the incident. Digerud had
Michaud takeninto an isolation cell, where she stayed, free from
anyone's influence, for roughly an hour.
During that time, Michaud had the opportunity to
change her mind about talking to the officers, and was not questioned.
In response to a Douglas County detective's call informing them about
Michaud's situation, Sergeant Minister and Agent Campion came to speak
After hearing that Michaud and Agoroastos had
approached Conrad, the officers had the right to inquire whether she
was reinitiating communication. Oregon v. Bradshaw, 462 U.S. 1039,
1045-46 (1983) (no Edwards violation where defendant appeared to
initiate further communication by asking an ambiguous question, a
police officer reminded him he did not need to talk and defendant said
he understood). Campion testified that, prior tolearning Michaud
wanted to talk, he had no plans to interview her.
Upon arriving at the interview room, Campion
introduced himself and told Michaud he understood she wanted tospeak
to someone about something she needed to get off her chest, and asked
if that was true. She responded,"I have some information about the
young lady who was killed a couple of days ago. Yes."
Campion then showed Michaud her Miranda rights on a
written form and read them to her, explaining thatshe had a right to
consult with a lawyer for advice before questioning, a right to have a
lawyer present during questioning and a right to stop answering the
detectives' questions atany time. Only after Michaud indicated that
she had something she wanted to say, that she understood her rights
andsigned a waiver did Minister and Campion begin to interview her.
From the testimony of Conrad and Michaud, we accept
that Michaud was upset, frightened and crying when Agoroastos
suggested speaking to somebody about the murder. Although Michaud
herself may not have initiated the conversation with Conrad, she went
to the gate with Agoroastos, did not resist speaking to authorities
and did not contradict what Agoroastos said at any time.
Michaud testified about her recollection of the
event as follows: Q: Did Theresa tell you to go see the deputy? A: No.
Q: Did Theresa tell you that she was going to take you up to see the
deputy? A: No. Q: Why did you go up to see the deputy? A: I didn't go
to see the deputy. Q: Did Theresa grab you by the arm and pull youup
to see the deputy? A: She had me by the arm. When the door opened, we
went out, and she brought me up to the gate, and she told the officer.
Q: That you wanted to talk to the police? A: No, she said -- I'm
trying to remember howshe said it. I believe she said she had some
information about a murder. Q: And you didn't tell the deputy that you
didn't,did you? A: I didn't say anything to the deputy at all. Q: You
just stood there? A: Yeah, I was upset. Q: You didn't go back to your
cell? A: No. Q: You just stayed there? A: With Theresa, yes. Q: And
you didn't tell the deputy that you didn'twant to go with him, did
you? A: The deputy didn't ask me. Q: You never told the deputy you
didn't want to gowith him, did you? A: No, I don't think so. Q: And
you never told the deputy that you didn't want to speak to the police,
did you? A: I didn't say anything. I didn't know. Q: Well, you were
standing right there, you heard precisely what Theresa said because
you're ableto repeat it now, right? A: Yes.. . .Q: And you never told
the deputy, "No, I don'twant to talk to the police," or, "No, I don't
haveany information about a homicide," did you? A: No, I didn't.
In sum, it is clear that Campion's inquiry about
Michaud's desire to "get something off her chest " and his and
Minister's subsequent questioning of her were triggered byAgoroastos'
statements in Michaud's presence that Michaudhad information about a
murder she needed to talk about.
The question then is: can Michaud's behavior, under
the totality ofthe circumstances, fairly be construed as an initiation
by her of further communication with the police, such that the
officers' reactions there after did not amount to "police-initiated
As the Supreme Court explained in Edwards:[W]hen an
accused has invoked [her] right to have counsel present during
custodial interrogation, avalid waiver of that right cannot be
established byshowing only that [she] responded to further
police-initiated custodial interrogation even if [she ] hasbeen
advised of [her] rights... [A]n accused...,having expressed [her]
desire to deal with the police only through counsel, is not subject to
further inter-rogation by the authorities... unless the accused
[herself] initiates further communication, exchanges, or conversations
with the police.451 U.S. at 484-85.
Taken together, Michaud's going with Agoroastos to
the gate as Agoroastos initiated communication with Deputy Conrad, her
apparent agreement with Agoroastos' assertion that Michaud had
"information about a murder" she wanted to talk about and Michaud's
subsequent behaviorand response to Campion's initial inquiry all
indicate that she wanted to talk to the authorities.We therefore hold
that the questioning of Michaud was initiated by her, not by the
We accept that Edwards and its progeny establish
aclear line preventing police initiation. By the same token, however,
these cases recognize that the accused may changeher mind and initiate
communication. It is a factual question whether that is what occurred.
On these facts, we conclude Michaud initiated, and
the police merely reacted to her. They did not seek to speak with her
until they were approached with the information that Michaud wished to
speak about a murder. The Supreme Court has explained that the rule
established in Edwards was "designed to prevent police from badgering
a defendant into waiving [her] previously asserted Miranda rights."
Michigan v. Harvey, 494 U.S. 344, 350(1990).
At no point did the law enforcement officials
unconstitutionally attempt to coerce Michaud into speaking with them.
No allegation has been made, nor does any evidence in the record
suggest, that Agoroastos was acting on behalf ofthe police, or
complicitly with them, when she spoke to Conrad. Michaud was present
when Agoroastos represented that Michaud had "information about a
murder" she wanted to convey. If Michaud did not want to subject
herself to questioning, she could have easily said so.
Conrad, confronted with Agoroastos' information and
Michaud's apparent tacita pproval of her cellmate's statements, acted
appropriately byceasing his own communication with her and contacting
his supervisor. Sergeant Digerud properly informed the investigating
officers of the request. Minister and Campion correctly confirmed that
Michaud was not being coerced, and that the initiative was hers, by
asking her at the start of the taped conversation whether it was true
that she wished to speak to them.
They began questioning her only after receiving her
affirmative response and informing her of her Miranda rights. Given
the propriety of the officers' behavior, we hold that there sumption
of interrogation did not violate Michaud's constitutional rights, and
was fully consistent with the requirements of Edwards. Our holding is
not at odds with United States v. Rodriguez,993 F.2d 1170 (5th Cir.
1993). In Rodriguez, Gary Shaw, oneof a group of co-defendants, called
an FBI agent and informed him that the group wanted to speak to him.
Id. at 1173.
The agent then took a statement from Rodriguez, one
of Shaw'sco-defendants, outside of the presence of his attorney. The
court held that Rodriguez had not initiated contact with the
authorities, so his subsequent statements were inadmissible. Unlike
the circumstances here, there was no indication that Rodriguez
assented to Shaw's contention that the group wished to speak to the
Indeed, Shaw told the FBI agent only that "they"
wished to speak to him, not specifying whether Rodriguez was among
those expressing this desire. Here, in contrast, Agoroastos purported
to speak on behalf of Michaud in Michaud's presence, and Michaud never
indicatedthat she disagreed with Agoroastos' representations.
In light of Michaud's acquiescence in Agoroastos'
characterization of her wishes, creating the appearance ofMichaud's
desire to provide information to the police, Michaud's confirmation in
response to Campion's inquiry andthe absence of official coercion, we
hold that no constitutional violation occurred and thus affirm the
district court's denial of Michaud's motion to suppress.
Michaud also contends that the district court erred
in its application of the Sentencing Guidelines. U.S.S.G.§ 2A4.1, the
section applicable to kidnapping, abduction and unlawfulrestraint,
establishes a base offense level of 24.
One subsection, § 2A4.1(b)(7)(A), states that
another offense committedduring the kidnapping requires the court to
apply "the offense level from the Chapter Two offense guideline
applicable to that other offense if such offense guideline includes an
adjust-ment for kidnapping, abduction, or unlawful restraint, or
oth-erwise takes such conduct into account." This subsection is
toapply if the cross-referenced section would result in a
higheroffense level than the sentence resulting from application of §
2A4.1. U.S.S.G. § 2A3.1 applies to criminal sexual abuse ofthe type at
issue in this case, and contains a specific enhancement for instances
of abuse where the victim was abducted.
In keeping with § 2A4.1(b)(7)(A) the court
cross-referenced § 2A3.1 to determine the correct offense level. The
base offense level of 27 under that section, adjusted upward by four
levels because the offense was committed by the meansset forth in 18
U.S.C. § 2241(a) (aggravated sexual abuse byforce or threat) and an
additional four levels due to the abduc-tion, resulted in an offense
level of 35.4 Michaud, however, notes that § 2A4.1 contains a separate
provision for kidnapping involving the sexual exploitation ofthe
victim. See U.S.S.G. § 2A4.1(b)(5). If the court applied this
subsection, the resulting offense level would be a base level of 24
for the kidnapping, increased by three levels for the sexual
exploitation, resulting in an offense level of 27.
A contrary interpretation, she argues, would render
§ 2A4.1(b)(5) superfluous. Section 2A4.1(b)(7) states unambiguously
that the offense level calculation from the other offense committed
during a kidnapping is to apply "if the resulting offense level is
greater than that determined" using § 2A4.1. Here, the
cross-referenced section resulted in a higher offense level --indeed,
that is the sine qua non of this portion of the appeal. We therefore
hold that the district court did not err in its application of the
The law enforcement officers' use of a ruse to
arrest Michaud was proper; she failed to prove the existence of
collusion between state and federal officials that rendered the delay
between her arrest on state charges and her appearance before a
federal magistrate violative of her rights under 18U.S.C. § 3501(c);
and the police did not initiate questioning after she had invoked her
right to counsel.
Accordingly, we affirm the district court's denial
of Michaud's suppression motion. We also hold that the district court
properly applied the Sentencing Guidelines. AFFIRMED.
REINHARDT, Circuit Judge, dissenting:
I dissent because the facts in this case present a
clear cut violation of Edwards v. Arizona, 451 U.S. 477 (1981), and
there is no basis in law for the unprecedented legal theory upon which
the majority bases its contrary ruling. As my colleagues recognize, in
Edwards, the Supreme Court established a bright-line rule prohibiting
the interrogation of a suspect in custody who invokes the right to
counsel, "unless the accused himself initiates further communication,
exchanges, or conversations with the police." Id. at 485(emphasis
added); see also id. at 486 n.9 (stating that authori-ties must show
"the necessary fact that the accused, not the police, reopened the
dialogue with the authorities"); Collazov. Estelle, 940 F.2d 411, 418
(9th Cir. 1991).
The Supreme Court has repeatedly emphasized that
Edwards provides a "rigid," "bright-line" rule, and "clear and
unequivocal guide-lines" to law enforcement. Arizona v. Roberson, 468
U.S.675, 681-82 (1988); Michigan v. Jackson, 475 U.S. 625, 634(1986);
Smith v. Illinois, 469 U.S. 91, 98 (1984).
Contrary to the majority's position, Michaud
clearly did not "initiate" the communications with the police, as
required by Edwards. There is no evidence that Michaud ever stated
that she wanted to talk to the authorities prior to the time they
questioned her. The phone call to Deputy Conrad was made by Michaud's
cellmate, Agoroastos, who told the deputy that Michaud "needed to talk
to somebody." Agoroastos appears to have reached this conclusion on
her own. The majority does not contend that Michaud ever told
Agoroastos that she wanted to talk, let alone that she wanted to talk
to the police; as the record shows, Michaud merely said to her, "I'm
scared.I'm in a lot of trouble."
On that basis, Agoroastos made her decision that
Michaud "needed to talk." Michaud never said anything to Agoroastos
that suggested that she herself was initiating a conversation with the
police, that she desired to do so, or that she wished to talk with
anyone at all.
To me, it isclear that it was first Agoroastos,
indirectly, and then Deputy Conrad, directly, who initiated the
inculpatory exchanges, and that Michaud was not the initiator.
Furthermore, even if one were to presume that someone who is in jail
and has refused to talk to the police because she desires counsel
would, upon discovering that her trouble is worse than she had
previously thought, want to talk to someone right away, it is highly
unreasonable to assume, as the majority blithely does, that it was the
police to whom she wanted to speak.
Obviously, it is far more likely that if Michaud
really "needed to talk to somebody," it was to the lawyer to whom she
had said she wanted to speak two daysearlier, even before her
circumstances worsened. The majority claims that although Michaud
remained silent,her conduct evinced a willingness to talk.
In the course ofreaching this unprecedented legal
conclusion, my colleagues run roughshod over the facts as well as the
law. They fail to acknowledge, for example, that by asking Agoroastos
to bring Michaud to the front of the dorm area so that he could talk
toher, it was Deputy Conrad who sought to initiate communications with
Michaud, not viceversa.
Indeed, Michaud's actions demonstrated only that
she was in a state of extreme emotional upset, that she followed all
directions she was given, and that she was not volunteering to talk to
the police. When, in accordance with Deputy Conrad's directions,
Agoroastos took Michaud by the arm and brought her to the gate,
Michaud was in a state of acute distress: she was crying, butshe said
She remained silent even when Agoroastosd iscussed
the nature of her criminal problem with Deputy Conrad, and then,
subsequently, when she was taken to anisolation cell. She also
maintained her silence for the hour inwhich she was left in that cell
and after that, when she wasbeing taken by Sergeant Minister from the
cell to the interview room.
During all of that time, Michaud remained silent:
she never once made any statement or expressed any desire totalk. As
Michaud remained silent at all times, she, of course, didnot state to
the deputy or her cellmate that she did not want to talk to the
The majority argues that this demonstrates
Michaud's tacit approval of Agoroastos's statementsand her own
willingness to talk, because "she could have eas-ily said" she did not
want to "subject herself to questioning."It is true that Michaud could
have said so, but she is not required to under Edwards. To the
contrary, the rule the majority suggests is in direct violation of the
spirit, the pur-pose, and the clear mandate of Edwards.
The whole point of Edwards is that a suspect who
has invoked her right to counsel may remain silent, and may not be
questioned unless she breaks that silence by initiating communications
with the police. She is not required to say anything further until
after she consults with counsel (and, in fact, not even then). It is
therefore strange indeed that the majority reasons that Michaud's act
of remaining silent is precisely what constitutes the initiation of
communications with the police. If that becomes the rule, bye-bye
The majority argues that the police had the right,
under Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983), to clarify
whether Michaud was initiating a conversation with them. The problem
with this argument is that Bradshaw applies only when the suspect
makes a verbal inquiry of the police or otherwise makes a statement
that reasonably leads the police to believe that she may desire to
talk. In Bradshaw , the defendant asked, "`Well, what is going to
happen to me now?' "Id. at 1045. The Court held that Bradshaw's verbal
statement-- his question -- rendered it appropriate for the officer
toseek to clarify whether the defendant wanted to speak about the
crime. Id. at 1046.
In this case, Michaud never made any inquiry of, or
statement to, the police at all. She simply remained silent, as
Edwards makes clear is her unqualified right. It is one thing to say
that a suspect's ambiguous statement may constitute the initiation of
an uncounseled interrogation by law enforcement officials and that the
police may therefore explore that ambiguity with the suspect; it is
another to say that silence can trigger an officer's right to question
a suspect, not with standing the suspect's prior assertion of her
Unless we maintain a clear line between a suspect's
speech that may be said to initiate exchanges with the police and
non-verbal conduct that may not, we will relegate Edwards to the
judicial junk pile where so many other enlightened decisions designed
to protect individuals' rights now rest. What is required under
Edwards is clear -- speech that invites further communication with the
police. Conduct (or "behavior" as the majority terms it), ambiguous or
otherwise, does not suffice. The majority's ruling to the contrary
finds no support in any opinion published in this circuit or any
other, or in any Supreme Court decision.
It is irrelevant to the Edwards analysis that
Michaud spoke freely and voluntarily after being asked if she wanted
to talk. Edwards, 452 U.S. at 484-85; Desire v. Attorney General of
California, 969 F.2d 802, 805 (9th Cir. 1992); United States v.
Whaley, 13 F.3d 963, 968 (6th Cir. 1994). It is similarly irrelevant
that Michaud was reread her Miranda rights after she began to speak.
Roberson, 486 U.S. at 685; Desire, 969F.2d at 805.
What is critical to the analysis is the fact that
Michaud never said that she wished to talk to the authorities until
after: a) she was told to meet the deputy; b) she was placed in an
isolation cell; c) she was brought to an interrogation room; and d)
Agent Campion asked her if it was true that she had something she
wanted to get off her chest. It was only after all of this
police-initiated action that Michaud spoke. The majority points to the
"absence of official coercion" assupport for its holding that no
violation of Edwards occurred.
However, simply because the police do not badger a
suspect into answering their questions does not mean that it becomes
acceptable for the police to initiate discussions with her after she
has asserted her right to counsel.
Edwards is clear. It does not matter in what tone
or manner the police speak; the police may not initiate the
interrogation of a suspect who has invoked that right. As the Supreme
Court stated: "The merit of the Edwards decision lies in the clarity
of its command and the certainty of its application." Minnick v.
Mississippi , 498 U.S. 146, 151(1990).
If we allow silence and body gestures to constitute
"initiation," including failures by upset and confused suspects to
comment on the statements of others, the police will beable in most
circumstances to find a justification for interrogating persons taken
into custody despite their clear and affirmative invocation of the
right to counsel. What is then left ofthe "clarity" and "certainty" of
Edwards, a "clarity" and "certainty" that we were told as recently as
1990 was the essential benefit derived from the rule? Not much.
In sum, the majority gives a new meaning to the
term "bright-line" when it holds that a "bright-line" rule that the
defendant must "initiate" the conversation is satisfied by a
defendant's silence that constitutes "apparent " agreement, or
"creat[es] the appearance of [a] desire," that "indicate[s]" that the
defendant wants to do the opposite of what she has previously stated
without qualification that she wishes to do. Similarly, if the
majority's explanations result in"clear and unequivocal guidelines"
regarding the prohibition against further questioning of defendants,
we can simply dispense entirely with the concept of "clear and
For, in addition to eliminating the bright-line
distinction between speech and conduct, the majority creates a new and
strange form of "clear and unequivocal" conduct: conduct that is not
definitive, but that merely "creat[es] an appearance of" or
"indicate[s]," in the perception of the police officers observing it,
some kind of "apparent" desire to speak; conduct that, at the very
least, would require judges as well as police officers, to attempt to
discern, largely on the basis of the actions of third parties, a
defendant's unexpressed intentions to surrender her constitutional
I believe that the authorities violated Michaud's
Fifth Amendment rights when they interrogated her on December 5, and
then again in subsequent interviews on December 6, 7, and 8.
Therefore, the statements made on those occasions should be
For these reasons, I respectfully dissent.