Supreme Court rules that request for lawyer in questioning has expiration

By Robert Barnes
Washington Post Staff Writer
Thursday, February 25, 2010

A suspect's request that a lawyer be present before submitting to police questioning does not last forever, the Supreme Court ruled Wednesday. In fact, 14 days is long enough for police to wait before taking the alleged perpetrator into custody again and attempting another interrogation.

The court ruled unanimously that Maryland could use an imprisoned child molester's statement -- given voluntarily 2 1/2 years after police first approached him -- to convict him on additional charges that he abused his son. Justice Antonin Scalia wrote that an initial request for an attorney does not mean that police can never reinitiate questioning, provided that the person has been released from custody in the meantime.

When a suspect "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," Scalia wrote.

But how much time needs to have passed between attempts? The court decided on the admittedly arbitrary limit of 14 days. "That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody," Scalia wrote.

He added that although it is "certainly unusual for this court to set forth precise time limits governing police action," it is not unheard of. And he said that because courts created the rule -- that police may not reinitiate the questioning of a suspect without counsel once a request for a lawyer has been made -- it is also up to courts to set limits.

Some justices had worried during oral arguments that if some time limit were not set, police might resort to a "catch and release" policy: A suspect would be picked up, released when he requested an attorney and then taken into custody again, repeating the process until he finally gave up his constitutionally protected right to remain silent.

Justice Clarence Thomas objected to the 14-day period, saying the majority provided no justification for why that was a better fit for the Fifth Amendment's self-incrimination clause than "zero, 10 or 100 days." Justice John Paul Stevens did not agree to it, saying it was too short, especially if police had made no effort in the meantime to find the suspect a lawyer.

But all justices agreed that the 2 1/2 years in the case at hand was sufficient.

Michael B. Shatzer was imprisoned at the Maryland Correctional Institution in Hagerstown for child sexual abuse in 2003 when police asked him about allegations in another case: that he had sexually abused his 3-year-old son.

Shatzer declined to answer questions and asked for a lawyer. A police officer stopped the interrogation, and the case went dormant.

But when Shatzer's son was old enough to offer new details, a different police officer questioned Shatzer in prison. This time, he waived his Miranda rights and made incriminating statements that led to his conviction.

The Maryland Court of Appeals, the state's highest court, said Shatzer's statements could not be used, citing the Supreme Court's precedent.

Maryland Attorney General Douglas F. Gansler, supported by the federal government, said there was no allegation in Shatzer's case that police had badgered him into a confession. He said police should be able to reinitiate attempts to question a suspect once there is a "break in custody" -- in this case, police stopped questioning Shatzer and released him back into the prison's general population.

The case is Maryland v. Shatzer.

It was the second time this week that the court clarified how police must implement the Miranda rule, the famous 1966 court decision that enforced the constitutional guarantee against self-incrimination, allowing the accused to have a lawyer present for police questioning.

On Tuesday, the court ruled 7 to 2 that a version of the Miranda warning that Florida police used was valid, even though it did not specifically tell a suspect that his attorney could be present during questioning. Over the objections of Stevens and Justice Stephen G. Breyer, the court said the version conveyed the relevant information.

© 2010 The Washington Post Company