The Second Circuit giveth and taketh away

In 2009, the Second Circuit held that a criminal suspect's custodial admissions had to be suppressed because he properly invoked his right to remain silent and could not be questioned about his alleged child pornography without an attorney present. The Court of Appeals in 2011 reverses itself in that same case because the Supreme Court changed the ground rules governing the right to remain silent and the right to counsel. Them's the breaks in a world of closely-divided Supreme Court rulings.

The case is United States v. Plugh, decided on August 8. When the police took Plugh into custody, he refused to sign the waiver form that says he would waive the Miranda rights to remain silent and insist on a lawyer. But he told the police, "I am not sure if I should be talking to you" and "I don't know if I need a lawyer." En route to the FBI office, he asked the agents "for advice on what to do." In 2009, the Second Circuit said that these facts compelled the trial court to grant Plugh's suppression motion, which would prevent the jury from hearing Plugh's incriminating statements. The Court of Appeals reasoned that while Plugh's statements were ambiguous about whether to waive his rights under Miranda, his refusal to sign the waiver form was unequivocal. The police should not have continued questioning him after he made it clear that he did not want to talk. This was good news for Plugh!

Then Plugh got some bad news. In 2010, the Supreme Court took up a nearly identical case, ruling in Berghuis v. Thomkins, 130 S.Ct. 2250 (2010), that criminal suspects must make an unequivocal statement to the effect that they do not want to talk and wish to invoke their rights under Miranda. This interpretation of Miranda was intended to allow for clear-cut rules to guide police behavior.

What this means for Plugh is that the Court of Appeals now reverses itself in this case, vacating its 2009 decision. First, "Plugh did not expressly state that wanted to remain silent or that he wanted to consult with an attorney." Moreover, his only statements on issue were ambiguous. He did not insist on the right to an attorney. He instead said he was not sure he needed a lawyer. While Plugh said that he unequivocally refused to sign the Miranda waiver form, that is not enough to suppress his incriminating statements made afterward. The Court of Appeals (Livingston, Jacobs and Rakoff [D.J.]) says that "a refusal to waive rights, however unequivocal, is not necessarily equivalent to an unambiguous decision to invoke them. Indeed, the Supreme Court has made clear that 'invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together." In a hair-splitting analysis that I am sure Plugh will be reading over and over in the wake of this decision, the Court of Appeals writes:

While his refusal to sign the form presented to him upon arrest may have unequivocally established that he did not wish to waive his rights at that time, his concurrent statements made equally clear he was also not seeking to invoke his rights and thus cut off all further questioning at this point. Those statements ... bespoke indecision -- i.e., 'I am not sure if I should be talking to you' -- and contemplation, i.e., 'I don't know if I need a lawyer.' Plugh then continued to express uncertainty about how he wished to proceed by repeatedly asking the agents, during the drive to the FBI field office, for advice on what to do. Critically, at no point did Plugh unambiguously inform the custodial officers that he wished to invoke his right to remain silent or his right to speak with an attorney, nor was his course of conduct such that the officers should reasonably have been put on notice that ... no further questioning should occur.